BAVA SAHIB MIYAN Vs. ABDUL GHANI SAHIB

JUDGEMENT

(1.) In this case the plaintiff-appellant sued for the recovery of possession of certain trust properties. He valued the suit at Rs. 3,030 but objections being taken by the defendants to the valuation an issue was raised on the point and it was found that the properties were worth Rs. .14,000. When he first instituted the suit he had paid Court-fee on Rs. 3,030 but when it was found that the properties were valued at Rs. 14,000 he was asked to pay additional Court-fee on the, 18th January, 1926. This order was passed on the 23 December, 1925. As the appellant was not able to pay the Court-fee as ordered on the 18 January, 1926, he put in an application asking the Court to allow him to continue the suit as pauper. This application was opposed on two grounds. It was argued that the suit having been filed after the payment, of Court-fee it was not open to the appellant to continue it as pauper. It was also argued that the appellant not having paid the Court-fee on the 18 January, 1926, as directed, the plaint should have been considered to have been rejected under Order 7, Rule 11(6) and (c), Civil Procedure Code and that there was no plaint which could be proceeded with by the appellant as a pauper. Both these arguments were accepted by the learned Subordinate Judge and his petition was rejected. In this appeal, it is contended that the Lower Court is wrong on both the points.

(2.) It has been held in a series of decisions under the old Code that it is open to a party who had filed a suit paying Court-fee to continue it as a pauper. In this Court it was held in Subba Rao V/s. Venkataratnam (1929) I.L.R. 53 Mad. 43 : 57 M.L.J. 677 following these decisions that under the new Code also the plaintiff may be allowed to continue the suit as a pauper though when he instituted he had paid Court-fee on it. The appellant relies on this decision in support of his contention that the plaintiff should be allowed to prosecute the suit as pauper.

(3.) On behalf of the respondent it is contended that this decision should not be accepted as laying down the correct law inasmuch as it does not appear from the judgment that the learned Judges have considered the alteration in the wording of Order 33, Rule 1 of the new Code. Under the old Code in Section 401, which corresponds to Order 33, Rule 1 the word used was "brought" instead of the word "instituted" used in the present Code in Order 33, Rule 1. Section 401 in the old Code ran as follows: Subject to the following provisions any slut may be brought by a pauper.