SITABAI RAMKISAN KACHI Vs. CHANDAR DEVINAN KASURE

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution assails the order passed by the learned 4th Joint Civil Judge, Senior Division, Pune on 13/4/1989 thereby rejecting the Misc. Application No.689 of 1986.

(2.) THE brief facts of this case are that Misc. Application No.733 of 1982 filed on 10/12/1982 was for seeking leave to file a suit in forma-pauperis before the Court of the learned Civil Judge, Senior Division. This application was filed on 10/12/1982 and it was heard and dismissed on 4/4/1986. Consequently, the petitioner-applicant could not file the suit in forma-pauperis. The court had directed the applicant to pay the necessary court fee stamp so as to proceed with the suit, but the applicant did not deposit the necessary court fee stamp for some reason or the other and, therefore, she took out an amendment application in Misc. Application No.733 of 1982 and this amendment application was registered as Misc. Application No.689 of 1986. As per the petitioner the said application was filed under Sections 149 and 151 read with Order VI Rule 17 of the C.P.C. The learned Judge of the trial court rejected the application as not maintainable.

(3.) SECTION 149 of C.P.C. lays down that where the whole or any part of any fee prescribed for any document, by law, for the time being in force, relating to court fee stamp, has not been paid, the court may in its discretion at any stage allow the person by whom such fee is payable to pay the whole or part as the case may be of such court fee and upon such payment, the documents in respect of which such fee is payable shall have the same force as if such fee had been paid in the first instance. Obviously, the application for amendment filed by the petitioner could not have been said to be an application under Section 149 of C.P.C. Similarly, Order VI Rule 17 provides for amendment of the pleadings which will mean amendment to the plaint and/or to the Written Statement. By the proposed amendment the petitioner was seeking to amend the dismissed application filed for leave to file a suit as forma-pauperis and, therefore, it could not be an amendment to the pleadings within the meaning of Order VI Rule 17, noted the trial court. The trial court also noted that it was possible for the plaintiff to file a fresh suit after her application was rejected and on the basis of the valuation she was claiming by the amendment sought to be made. Under such circumstances, the application could not be considered under Section 151 of C.P.C. and such powers of the trial court could not have been revoked by the petitioner by filing amendment application. Though the application was dismissed after about 3 years by the impugned order, no efforts were made by the petitioner to remit the prescribed amount of court fee stamp and it is not known whether during the last about 17 years or so the petitioner filed a fresh suit.