JINATUN NISA BIBI Vs. IDRAKUN NISA

JUDGEMENT

(1.) This is an appeal against the judgment of the Additional Subordinate Judge, Cuttack, granting a decree to the plaintiff in a suit for recovery of Rs. 7530 as her dower debt due from the estate of her deceased husband. The point debated on this appeal is whether a Court, while rejecting an application to sue in forma pauperis, can grant time to the petitioner for payment of court-fee and whether in such a case the suit shall be deemed to have been instituted on the day of the presentation of the pauper application.

(2.) The facts briefly are that the plaintiff started her suit with an application under Order 33, Rule 2, Civil P. C. praying for permission to sue in forma pauperis. That application sets out in detail all the particulars required for a plaint, states the cause of action and the relief that the plaintiff is entitled to, and in the prayer portion contains a request (1) that the petitioner be permitted to sue as a pauper; and (2) that she may be given a decree for their recovery of her dower money amounting to BS. 7530 together with costs. The learned Subordinate Judge registered this application as Misc. case No. 143 of 1939 on and 27th May 1940 allowed the application of the plaintiff and registered the suit as O. S. No. 77 of 1940, The defendants went up in appeal to the High Court against this order of the Subordinate Judge. The order of the Subordinate Judge was reversed and the petition was remanded, by the High Court's order dated 30th October 1940, for instituting a fresh enquiry into the pauperism of the petitioner. On 8th March 1941 the Subordinate Judge restored Misc. case No. 142 of 1939 and directed that the proceedings in the original suit which had been registered as O. S. 77 of 1940 shall be stayed. The enquiry into the pauperism of the petitioner was taken up and was being adjourned from time to time till 30th October 1941 when farther proceedings in the suit were dropped; and on 20th December 1941, the petition for leave to sue as a pauper was rejected. The order of the learned Subordinate Judge reads as follows :

(3.) We allowed Mr. Sen Gupta to argue the point at length irrespective of whether or not the previous order of the High Court operated as res judicata; and after hearing him we take the same view of the proceedings as Shearer J. did previously. The learned Subordinate Judge had throughout treated the document which was filed as a petition by the plaintiff, in initiating her suit, as a composite document consisting of plaint and a petition. In fact, he kept both the suit and the petition pending for a long time, although the High Court directed a fresh enquiry into the pauperism of the petitioner. Though the learned Subordinate Judge ultimately directed the proceedings in the suit to be dropped he was aware throughout that the document was capable of being converted into a plaint on payment of court-fee. He therefore called upon the petitioner to pay court-fee while rejecting her application to sue as a pauper. The fact that the learned Judge divided the order into two portions and signed twice has given rise to the contention that he passed two separate orders as indeed they have been separately numbered as 46 and 47. We are however unable to accede to this contention as we find, on a reference to the orders, that they were written by the learned Subordinate Judge himself in his own hand, at the same time and on the same day, though the numbering was done by the clerk subsequently. The expression used by the learned Judge is also significant. He says : "The applicant is now called upon to pay court-fees." The use of the word "now" clearly indicates that the petition having been rejected, there was an unstamped plaint before the Court which could be registered as a suit on payment of the court fee. The applicant was, therefore, given the option to pay court-fee. This contention of Mr. Sengupta must, therefore, fail.