MOJIZA KHATOON Vs. SAYEED FATMA

JUDGEMENT

(1.) The opposite party No. 1 filed an application for permission to sue as a pauper. In that application she claimed Rs. 10,000/- with interest thereon and also claimed- certain amount as damages for certain moveables. While this application was pending she applied to the Court that she be permitted to reduce her claim to a sum of Rs. 10,000/-only and be permitted to pay court-fee thereon. This application was allowed. She paid court-fee and her application was ordered to be registered as a plaint. Against this order one of the defendants has come up in revision and contends that the learned Civil Judge before whom the application for leave to sue had been filed, had no jurisdiction to convert the application into a plaint and to allow court-fee to be paid even though the claim had been reduced. If as was admitted the applicant was not in fact a pauper the application under I Order 33 was bound to be rejected. The applicant could then file a plaint with proper court-fee.

(2.) The contention on behalf of the defendant-applicant appears to be entirely untenable, As required by Order 33, Rule 2 the application for permission to sue as a pauper contained all the particulars in regard to a plaint. In addition it contained a schedule of the property possessed by the applicant and a prayer that she may be allowed to sue as a pauper. The application had been signed and verified as a plaint. Before the application could be finally disposed of the applicant found that she was in a position to pay court-fee Provided she reduced her claim. She therefore applied to be permitted to reduce her claim and to pay court-fee on the amount of the reduced claim. There appears to be nothing in Order 33. C. P. C., which could prevent her from doing so.

(3.) In the case of Stuart Skinner Nawab Mirza v. William Order, reported in ILR 2 All 241 (A) a person had applied for permission to sue as a pauper. Pending an enquiry into his pauperism he obtained funds which enabled him to pay the court-fee. The Court thereupon permitted him to pay the court-fee and registered the plaint. An objection was raised to this procedure. It was: also contended that for the purposes of limitation the plaint was to be treated as having been filed on the date on which court-fee was paid and not on the date on which the petition for leave to sue as pauper had been originally filed. The case went up to the Privy Council and their Lordships, while dealing with the appeal, laid down in clear terms that the plaintiff could have been allowed on Payment of proper court-fee to continue the petition as a plaint and even for the purposes of limitation the suit could be deemed to be instituted on the date on which pauper petition had been filed and not on the date on which the court-fee had been paid.