MAKUNDI MANDAL Vs. HARIDAS

JUDGEMENT

(1.) This application in revision by the defendants first party of Title Suit No. 148 of 1965 is directed against the order dated the 20th of March, 1967, passed by the learned Subordinate Judge, Bhagalpur, in Miscellaneous Case No. 61 of 1966. By the impugned order the learned Subordinate Judge allowed the application of the plaintiffs for permission to sue in forma Pauperis.

(2.) It appears that originally the plaintiffs filed the title suit in the court of the Munsif at Bbagalpur. The plaint was however, returned to the plaintiffs because the valuation of the suit properties was beyond the pecuniary jurisdiction of the learned Munsif. The plaintiffs, therefore, filed the plaint in court of the Subordinate Judge on the 6th of December, 1965. The sheristadar after examining the plaint made a report that the court-fee paid was sufficient. The plaint was, therefore, admitted and the suit was numbered as title suit 148 of 1965, Subsequently the plaintiffs filed the requisite fee for issue of summons and summons were duly served on the defendants and 20th of January, 1966, was fixed for settlement of issues. It appears that, later on a fresh stamp report was made by the Sheristadar according to which the plaintiffs were required to pay ad valorem court-fee and the deficit court-fee payable by them was to the extent of Rs. 1,224.45 paise. The plaintiffs filed objection to the report of the stamp reporter. The learned Subordinate Judge considered the report of the stamp reporter as well as the objection of the plaintiffs and by his order dated the 28th of July, 1966, held that ad valorem court-fee was payable on the valuation given by the plaintiffs. He accordingly accepted the report of the stamp reporter as correct and directed the plaintiffs to pay the deficit court-fee by the 10th of August, 1966. On the 10th of August, 1966, a petition was filed on behalf of the plaintiffs for extension of time. The learned Subordinate Judge allowed the petition and directed the plaintiffs to pay the deficit court-fee of Rs. 1,224.45 paise by the 17th of August. 1966. On the 17th of August. 1986, the deficit court-fee was not paid nor any petition for extending the time was filed. The learned Subordinate Judge, therefore, adjourned the case to the 18th August, 1966. Later on the same date, however, an application under Order 33, Rule 1 of the Code of Civil Procedure was filed on behalf of the plaintiffs in which they stated that they were not in a position to pay the requisite court-fee and prayed that permission to sue in forma pauperis might be given to them. On the basis of that application Miscellaneous Case No. 61 of 1966 was instituted. As the petition was not supported by affidavit nor was it verified, the learned Subordinate Judge directed that the applicant should file affidavit and examine himself by 18-8-66. On the 18th August, 1966, neither the plaintiffs appeared nor the affidavit was filed. Therefore, the miscellaneous case was adjourned to 19th August, 1966. On the 19th August, 1966 an affidavit in support of the petition under Order 33. Rule 1 of the Code of Civil Procedure was filed and one of the applicants, namely, Sheonarain Das examined himself in support of the application. The learned Subordinate Judge thereafter admitted the application. It appears that in the title suit itself on the same day a petition was filed by the plaintiffs to keep the suit pending till the disposal of the pauper application. A rejoinder to the application of the plaintiffs was filed by the defendants first party. Ultimately the miscellaneous case was heard on the 11th of March, 1967. Witnesses were examined on behalf of the plaintiff applicants as well as on behalf of the opposite party, namely, the defendants first party. The learned Subordinate Judge afler considering the evidence of the parties held that it was a fit case in which permission should be given to the plaintiffs to sue in forma pauperis. Accordingly he allowed the application.

(3.) Being aggrieved by the order of the learned Subordinate Judge, the defendants first party have preferred this application in revision in this Court. Learned counsel appearing for the petitioners has raised the following contentions, namely, that the order of the learned Subordinate Judge is bad in law inasmuch as there is no finding that the plaintiffs are incapable of raising the requisite money; that the Subordinate Judge had no jurisdiction to allow the application of the plaintiffs to sue in forma pauperis when the suit had been registered as an ordinary suit; that as court-fee had not been paid within the time allowed by the Court, the suit ought to have been dismissed under Order 7, Rule 11 and that the learned Subordinate Judge acted without jurisdiction in allowing the application of the plaintiffs to sue in forma pauperis on the basis of an application which was not verified in accordance with law.