NARAYAN PATIL Vs. HIRALAL BRAHMIN

JUDGEMENT

(1.) THE order in this application will govern the disposal of Civil Revision No. 278 of 1932 between the same parties. The non-applicants were respondents in appeals before the District Judge. They applied for permission to file cross-objections in forma pauperis.

(2.) THE applicant urged that pauper respondents were not entitled to present objections without payment of stamp duty. The learned District Judge considered that Clause 5, Order 41, Rule 22, Schedule 1 to the Civil Procedure Code was clear, and overruled this contention. He points out that this view was taken in Mt. Chander Kala Kuer v. Mt. Dulhin Raja Kuer AIR 1929 Pat 31. In revision it was urged that the learned District Judge was bound to follow the reported ruling of this Court, Raja Ratan Singh v. Rani Beni Bai (1905) 1 NLR 33 which was not brought to his notice. In view of the possible necessity of overruling Raja Ratan Singh v. Rani Beni Bai (1905) 1 NLR 33 the revision application has been heard by a Bench of two Judges. Ismay, J. C., in Raja Ratan Singh v. Rani Beni Bai (1905) 1 NLR 33 held that Section 16, Court-fees Act, did not allow a Court to hear a cross-objection until court-fee had been paid, making no exception to the rule for pauper respondents. He followed the decisions in Babaji Hari v. Rajaram Ballal (1875) 1 Bom 75, Narayana v. Krishna (1885) 8 Mad 214 and Brojeshwari Dasi v. Guroo Churn Das (1885) 11 Cal 735. These decisions were given before the amendment of the Civil Procedure Code by Act 7 of 1888. In Narayana v. Krishna, the Judges have stated that the Civil Procedure Code did not provide for the admission of objections even when preferred by a pauper without payment of court-fees and expressed the opinion that the omission was unintentional. The nature of the change effected by Act 7 of 1888 is described in Govind Rani v. Radha Ballabh Das (1911) 15 CWN 205 (of 15 C. W. N.) : We now proceed to deal with the application for leave to file the petition of cross-objections in forma pauperis presented by the defendant. It has been suggested by the learned vakil for the appellant that an application for leave to file a petition of cross-objections in forma pauperis cannot be entertained under the Code; but this position cannot be maintained. No doubt the cases of Rashomonee v. Junmojoy (1868) 9 W R 356, Babaji v. Raja Ram (1875) 1 Bom 75, Narain v. Krishna (1885) 8 Mad 214 and Brojeshiwari v. Guroo Charan (1885) 11 Cal 735 support the view that under the Civil Procedure Code of 1859, Section 348 and of 1882, Section 561, a petition of cross-objection could not be filed in forma pauperis; but since then the Code has been amend-d by Act 7 of 1888 by Section 48 of which a provise was added to the effect that the provision relating to pauper appeals were applicable to cross-objections taken under Section 561. This provision is reproduced in Order 41, Rule 22, Sub-rule 5 of the Code of 1908.