A GOVINDARAJU MUDALIAR Vs. CHUNDURU HANUMANTHA RAO

JUDGEMENT

(1.) An application was presented by the petitioner for permission to sue in forma pauperis and was numbered as O.P. No. 47 of 1941 on the file of the Court of the District Munsif of Tenali. After the preliminary enquiry as to pauperism, the application was allowed and the plaint numbered as O.S. No. 38 of 1942. Upon objection being taken by the defendant, the Court discovered that it had no pecuniary jurisdiction to try the suit. The plaint was therefore returned for presentation to the proper Court. Some days later, in order to bring the suit within the pecuniary jurisdiction of the District Munsif, the petitioner deleted one of his claims. It was re-presented as a plaint and re-numbered as O.S. No. 53 of 1943. The defendant then raised the objection that since the District Munsif was not competent to entertain the application to sue in forma pauperis, because the suit would have been beyond the pecuniary jurisdiction of the Court, the Court could not re-entertain the amended plaint and allow the plaintiff to sue as a pauper without again considering a proper application to sue in forma pauperis. The lower Court accepted that contention and again returned the plaint.

(2.) I have no doubt that the lower Court was right. Since the suit would have been beyond the jurisdiction of the District Munsif, he had no jurisdiction to entertain the pauper application; and so the amended but unstamped plaint could not be entertained without an application to sue in forma pauperis. It was only after the amendment of the plaint that the Munsif had jurisdiction to entertain an application to sue in forma pauperis. The argument of the learned advocate for the petitioner is that the re-presented plaint was the old plaint amended. That is not the case; because the plaint was amended by confining its prayers to something less than was originally asked for, which means that the plaint as re-presented was a different plaint from what was originally presented. Apart from that, however, since the original presentation of an application to sue in forma pauperis was invalid, it would follow that the first valid presentation was only when the plaint was re-presented and that the lower Court had no jurisdiction to entertain a suit in forma pauperis without an application to sue in forma pauperis. This question was considered in Chandrayya V/s. Seethamma ( 40) 27 A.I.R. 1940 Mad. 689 where a question of limitation arose which depended on the answer to the question as to when the plaint was first presented. It was held that since the first presentation was not a valid presentation, the suit was instituted only when a plaint which could be properly entertained by a Court, namely, the amended plaint, was presented. Reliance is placed by the petitioner on a later decision of the same Bench in Ramaswami Iyer V/s. Veerarayan Raja ( 41) 28 A.I.R. 1941 Mad. 711 where a plaint was presented in the Court of the Subordinate Judge of Calicut which could have been presented in the Court of the District Munsif of Calicut; and the Court held that the suit was validly instituted when the plaint was first presented in the Court of the Subordinate Judge. The reasons given by the learned Judges show that this decision, far from supporting the case of the petitioner, reaffirms the previous decision in Chandrayya V/s. Seethamma ( 40) 27 A.I.R. 1940 Mad. 689. Although the earlier decision is not referred to in the judgment of the later decision, the learned Judges said: If it had been the case that the Subordinate Judge of Calicut had no jurisdiction to entertain respondent 2's suit we should have no hesitation in accepting the contention of the appellant that the date of the institution of the suit was 11 August 1932, when the District Munsif of Chowghat became seised with the matter. The presentation of the plaint to a Court which has no jurisdiction to try the suit cannot be said to be the institution of the suit, even though the plaint has been accepted as being in order and registered. Before a suit can be deemed to be instituted the plaint must be presented to a Court having jurisdiction. But notwithstanding that here the plaint should have been filed in the Court of the District Munsif by reason of Section 15, Civil P.C.,?. The Subordinate Judge had in fact jurisdiction under the provisions of Section 12, Madras Civil Courts Act.

(3.) It follows from these two decisions, that the lower Court was right in holding that it could not entertain the re-presented plaint until an application had been made to sue in forma pauperis and found in the petitioner's favour. It is finally argued that it was unnecessary for the District Munsif to again return the plaint. Although the petitioner doubtless intended to represent a plaint, yet what he re- presented was what he had originally presented as an application to sue in forma pauperis with a part deleted; and we find that the paper represented by him still bears the number O.P. No. 47 of 1941. Mr. Subramaniam for the respondent does not object to the re-presented plaint being considered as an application to sue in forma pauperis. The petition is allowed to the extent that the District Munsif is ordered to treat what was re-presented by the petitioner as an application to sue in forma pauperis which he should now proceed to dispose of in accordance with law. The petitioner will pay the costs of the respondent in this Court.