RAJU CHETTIAR ALIAS RAMASAMI CHETTIAR Vs. RAMAKKAL

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Dindigul setting aside the decree passed by the District Munsif of Periyakulam dismissing the suit of the appellant on the ground that she had failed and neglected to perform a condition precedent on the performance of which she was granted an adjournment of the suit.

(2.) The facts are these. The first respondent filed the suit out of which the present appeal has arisen for a declaration that the decree and subsequent proceedings in O.S. No. 156 of 1930 on the file of the District Munsif's Court, Periyakulam, are void and not binding on her and for recovery of possession of certain immovable properties together with mesne profits. She obtained leave to file the suit in forma pauperis. The defendants contested the suit and issues were framed on the 20th August, 1937 embodying the questions in dispute. The trial was fixed for the 12th October, 1937. On that day the plaintiff was not ready and the suit was adjourned to the 24 November, 1937. The plaintiff was again unready and the suit had again to be adjourned to the 21 st January, 1938. On the 21 January, 1938 the plaintiff was once again not ready and the Court was obliged to adjourn the suit to the 8 February, 1938. On that day it appeared that the plaintiff was again not ready and she prayed for a further adjournment of the suit. The adjournment was granted but the plaintiff was directed as a condition precedent to pay two sets of day costs of Rs. 5 each, the idea being that the day costs should be paid to the contesting defendants on or before the adjourned date. Subject to the said condition the suit was adjourned to the 17 February, 1938. Neither on that day nor on any day previous did the plaintiff pay the costs ordered and the District Munsif therefore dismissed the suit. An appeal was preferred to the Subordinate Judge of Dindigul who reversed the decree of the District Munsif on the ground that as the appellant was a pauper she should not have been asked to pay the day costs and that her suit ought not to have been dismissed for non-payment of the same. For this view the learned Judge relied upon the decision of the Bombay High Court reported in Ambaji V/s. Hanmantrao (1922)I.L.R. 47 Bom. 104.

(3.) The only relevant provision of the Civil P. C. on the point is that contained in Order 33, Rule 8 which says: Where the application (application for leave to sue as a pauper) is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court fee (other than fee payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.