SURJIT KAUR Vs. CHANAN DEVI

JUDGEMENT

(1.) The facts leading to this appeal are that Smt. Chanan Devi filed a suit for possession of house No. 12/1 situated in Ambala Cantt against Sawan Singh. That suit was decreed on 4th December, 1970. Sawan Singh defendant filed an appeal in the Court of District Judge, Ambala. On the Memorandum of appeal he had affixed court-fee stamp of Rs. 1.25, only. A note was appended in the grounds of appeal to the effect that court-fee stamps were not available on the date of filing of the appeal, being a holiday and the court-fee would be paid when the court-fee stamps were available. That appeal was filed on 26th December, 1970. The appellant was asked to make good the deficiency in court-fee by 4th January, 1971. Court-fee was not made good by that date. Non- payment of court-fee deficiency also escaped the notice of the Court. On 4th of January, 1971, the case was adjourned to 15th of January, 1971, for summoning the lower Court's record. It appears that before that date said Smt. Chanan Devi plaintiff-respondent had also put in appearance. The case was adjourned for a couple of hearings for summoning the record which had not been received. On 1st of March, 1971 on which date the case was fixed for hearing, it came to the notice of the lower Appellate Court that the deficiency in court-fee had not been made good by the appellant by that time. He was asked to make good that deficiency by 8th of March, 1971. When the case came up for hearing on 8th of March, 1971, it was stated before the learned District Judge that Sawan Singh appellant had died on 3rd of March, 1971. An application was also filed by Smt. Surjit Kaur for being brought on the record as the legal representative of the deceased. The case was adjourned to 22nd of March, 1971. Smt. Chanan Devi contested that application. Vide order dated 23rd of July, 1971, the learned District Judge allowed the application of Smt. Surjit Kaur and she was impleaded as legal representative of Sawan Singh deceased. Vide order of the same date, she was asked to make up the deficiency in court-fee on 4th of August, 1971. However, before that date, Smt. Surjit Kaur filed an application on 28th of July 1971, for permission to prosecute the appeal as pauper. The learned District Judge, vide order dated 24th August, 1971 disallowed the application of Smt. Surjit Kaur on the ground that she being the legal representative of the original appellant entitled to file appeal was not entitled to prosecute the appeal in forma-pauper is and moreover she had failed to show that the judgment and decree appealed against were contrary to law or to some usage having the force of law or were otherwise erroneous or unjust. He rejected the memorandum of appeal for non-payment of deficiency of court-fee in spite of sufficient opportunity having been given to Sawan Singh and his legal representatives to make up the deficiency. Feeling aggrieved, Smt. Surjit Kaur has filed this appeal.

(2.) At the time the appeal was decided by the learned lower Appellate Court, Order 44 Rule 1 of the Code of Civil Procedure stood as follows :-

(3.) The learned lower Appellate Court did not allow Smt. Surjit Kaur, legal representative of Sawan Singh, who was the original appellant in that Court, to prosecute the appeal for the reasons already given above. Before I take up the arguments of the learned counsel for the appellant. I may mention here, that he did not attack the finding of the learned lower Appellate Court that Surjit Kaur was not competent to prosecute the appeal in forma pauperis which had been originally filed by Sawan Singh who did not claim himself to be a pauper. In this respect the only argument advanced by him was that in this Court she has been allowed to file appeal as an indigent person. It is to be noted that the present appeal is against rejection of memorandum of appeal by the learned lower Appellate Court.