IN RE, BEZWADA SUBBA REDDY Vs. STATE

JUDGEMENT

(1.) This is a petition directed against the order rejecting the application for dispaupering the plaintiff. The suit was brought against two defendants and if the Court-fee required to be paid is more than Rs. 6,000. The defendants filed their counter stating that the plaintiff was possessed of vast properties and was not a pauper. The Government Pleader in obedience to the service of notice did not enter appearance and after an adjournment the petition was posted for hearing. On the date of hearing the plaintiff adduced her evidence but the petitioner and his father who were the defendants failed to substantiate their contention as embodied in the counter with the result that the plaintiff was declared pauper. Thereafter the present petitioner and his father filed a written statement. Sometime thereafter the application in question was filed under Order 33, rule 9, Civil Procedure Code. The Government Pleader this time supported this petition giving the particulars of the properties owned and possessed by the plaintiff. But the learned Subordinate Judge held that since both the Government and the party-defendants had notice and opportunity to Establish their case as embodied in the counter and failed to do so, they cannot be allowed to reopen the matter unless it comes directly within Order 33, rule 9, Civil Procedure Code. He found that rule 9 (a) and (b) had no application to the present petition and only (c) could be applied. He recorded evidence in support of the contentions raised under Order 33, rule 9 (c) and found that the agreement alleged has not been proved and dismissed the petition.

(2.) The learned counsel appearing before me has argued that there could be no question of res judicata either constructive or actual, in matters like this and the parties were at liberty to show at any stage that the conduct of the plaintiff has been improper or vexatious or that the means of the plaintiff are such that she ought not to continue as a pauper. In support of this he has relied on Chellammal v. Muthu Lakshmi Ammal, (1945) I MLJ 53 : 58 LW 21. Such an argument was also advanced before the trial Judge and the learned trial Judge distinguished the case cited found that the authority in Anangabhushan v. Ghanashyam Patro and another, AIR 1951 Orissa 349 had applied to the facts of the case and thus rejected the contention of the petitioner. In matters like this when once an opportunity has been given to a party to establish his claim and the party has wilfully failed to avail of the opportunity it is not open to him to re-agitate the same matter over again. It was different if the party was not aware of the circumstances at the time and came to know of them only at a late stage. The party indeed had asserted these facts but failed to substantiate the same. The principle embodied in section 11 Civil Procedure Code, is a principle based on public policy and is intended to import finality to the judgments and orders. Otherwise there would be no end to litigation. It should be remembered that the matter of Court-fee concerns the Government but they have not come up in revision. So far as the petitioner is concerned there can be no prejudice to him. Further whether the plaintiff wins or loses the Government would recover the Court-fee. All that the defendant would be interested in is that he will not be unnecessarily or unjustly harassed. Certainly non-payment of Court-fee is not a matter which causes harassment to him. If the case is vexatious or false he will get his costs according to law. Under these circumstances, when the Court below has in view of the circumstances of the case, in exercise of its discretion, rejected the petition after taking necessary evidence, I do not think that such a matter is open to interference in revision. The revision petition is therefore dismissed. Revision dismissed.