GAYATRI DEVI Vs. VIDYA DEVI

JUDGEMENT

(1.) ONE Rajaram filed a civil suit for a declaration, perpetual injunction and arrears of rent against Smt. Vidya Devi, his wife, alleging that he was the real sole owner of the house which was purchased out of the funds supplied by him benami in the name of the defendant. During the pendency of the suit, Rajaram died and the present plaintiffs-applicants were brought on record as his legal representatives. Faced with the difficulty that if the suit were to be decreed, they along with the defendant Smt. Vidya Devi, would be entitled to the suit house as the heirs of the deceased Rajaram, they applied for amendment of the plaint by introducing the plea that in case the suit were decreed, they were entitled to 7 /8th share in the suit house, in respect of which they may also be put in possession. While applying for the aforesaid amendment, they valued their share at Rs. 26,250 /- and as on the said valuation a Court fee of Rs. 2,100/- was required, they prayed for being allowed to sue as paupers. The defendant opposed the application alleging that the legal representatives of the deceased could raise only such pleas and pray for only such reliefs as the deceased would have claimed if he had continued the suit. However, by the order dated 21-9-1967, the First Additional District Judge, Bhopal, allowed the application for amendment but rejected the application for permission to sue in forma pauperis because, in his opinion, as regards the latter prayer the application had not been filed in compliance with the provisions of Order 33 of the Code of Civil Procedure. The plaintiffs-applicants have, therefore, come up for revising the aforesaid order.

(2.) WHERE a plaintiff files a suit and his plaint is admitted with a certain court-fee but later, after the written statement has been filed and issues are settled, the Court at the trial of an issue as to the court-fee comes to the conclusion that an additional court-fee would be required, the plaintiff may, if he is unable to pay the additional court fee, make an application for permission to continue the suit as a pauper. In such a case, his application to sue as a pauper cannot be dismissed, because it was not in accordance with Order 33 of the Code of Civil Procedure: [Thompson v. The Calcutta Tramway Company1, Subba Rao v. Venkataratnam,AIR 1929 Mad. 828=I.L.R. 53 Mad., Hafiz Mahammad Fateh Nasib v. Aminuddirf,AIR 1934 Cal. 25=I.L.R. 60 Cal. 827,,and Revji Patil v. Sakharam4]. It has also been held that where the plaintiff dies during the pendency of his application for permission to Sue in forma pauperis, his legal representatives can be substituted in his place, though, because the right to sue in forma pauperis was a right personal to the deceased plaintiff, his legal representatives, if they also want to continue the suit, in forma pauperis, shall have to show that they are also paupers entitled to sue in forma pauperis. See Mst. Annapurna Bai v. Balaji Maroti,20-I.]i..R. 1946 Nag. 663. '

(3.) IN the instant case, the plaint had already been filed by a lawyer. It had been filed with the requisite court-fee affixed to it at the time it was presented. On the death of Rajaram, his legal representatives have been brought on record in his place. They have been permitted to amend the plaint because, so far as they are concerned, they as legal representatives of the deceased being out of possession have to claim possession of the suit property in respect of their share only. Under the circumstances, I do not see how in such a contingency Order 33 of the Code of Civil Procedure could be made applicable, which Order in terms provides that from the very inception a composite application (a plaint plus an application to sue in forma pauperis) has to be made. IN the case in hand, even if an application simpli- citer for permission to sue in forma pauperis without a plaint were to be made, it would not be in compliance with order 33, rule 2, nor can such an application be ever turned into a plaint by the deeming provision contained in rule 8 of Order 33. IN my opinion, it is quite impossible in a case like the present one to comply with the provisions of Order 33.