NEELIKANDI MOIDIN Vs. KUNHAYISSA

JUDGEMENT

(1.) This revision petition has been filed against an order of the learned Subordinate Judge at Calicut permitting two minor plaintiffs to continue O.S. No. 9 of 1934 on that Court's file as paupers. The suit was one for partition, and in the first instance the plain-tiffs paid a court-fee of Rs. 100 on it under Art. 17(b), Schedule 2, Court-Fees Act. On objection taken by the defendants, the Court held that ad valorem Court-fee was payable on the value put by the plaintiffs themselves on the suit for purposes of jurisdiction and according to this ruling they had to pay about Rs. 376 in addition. Within the time fixed by the Court below for payment of this additional fee, an application was made on behalf of the plaintiffs for permission to continue the suit in forma pauperis. The lower Court granted permission accordingly. At the time that the petition came on for admission, King, J., made a note that the right of the lower Court to declare the plaintiffs paupers was no longer challenged, if the facts justified it. Mr. Govinda Menon says that as the revision petition has been admitted he is at liberty to argue the question as a point of law especially in view of the fact that some of the early cases which were relied on by this Court in Subba Rao V/s. Ventataratnam 1929 53 Mad 43 have recently been doubted by the Calcutta High Court in Mrs. Selina Sheeham V/s. Hafiz Mohammad Fatesh, Nashib 1932 36 CWN 567. Without conceding that a petitioner in revision has got a right to go behind an order made at the time that his petition was admitted, I have heard arguments on this question on account of its importance. I see no reason for not following the decision in Subba Rao V/s. Ventataratnam 1929 53 Mad 43. If I may say so, with due respect to the learned Judges who decided Mrs. Selina Sheeham V/s. Hafiz Mohammad Fatesh, Nashib 1932 36 CWN 567., the point for consideration is not whether the Code provides for such conversion but rather whether there is anything in the Code inconsistent with it.

(2.) The situation that has arisen in the present case need not necessarily suggest any mala fides on the part of the plaintiffs. They might have been prepared to pay the court-fee which they were advised was the fee proper payable when they instituted the suit. Especially in respect of partition suits, it is common knowledge that there is considerable divergence of judicial opinion as to the court-fee payable. If later on the Court considers an additional fee necessary and if in truth and fact the plaintiffs are not possessed of means to pay the additional fee, there is nothing inconsistent with the scheme of the Code in giving the plaintiffs the benefit of the provisions of Order 33. The very fact that such a rule has been laid down in Calcutta as early as in Nirmul Chandra Mookerji V/s. Doyal Nath Bhuttacharjee (1876) 2 Cal 130, and in Bombay as early as Revji Patil V/s. Saiharam (1884) 8 Bom 615, is some indication of its propriety and it is not to be forgotten that there have been at least two or three occasions since those cases were decided when the Legislature has either recast or made amendments to the Civil Procedure Code. On a point of practice, it is a well established principle that the Legislature must be presumed to approve of established rules and practice if, on occasions when it does turn its attention to the subject, it does not introduce any provisions to the contrary. Even the learned Judges, who decided Mrs. Selina Sheeham v. Hafiz Mohammad Fatesh, Nashib 1932 36 CWN 567 were not prepared to express a positive dissent from the earlier cases. It is true that Order 7, Rule 11, Civil P.C. provides for the rejection of a plaint when the plaintiff is not prepared to pay the proper court-fee. But that provision must be read consistently with the powers possessed by the Court under other provisions of the law. I see no useful purpose in insisting that the Court must reject the plaint in circumstances like those of the present case and insist upon the plaintiff filing a fresh petition.

(3.) It may be very convenient for the defendant in certain circumstances to insist upon that course. It is not by any means certain whether the time occupied by the pendency of the first suit can be deducted for purposes of limitation under Section 14, Lim. Act. Considerations of this kind point more to the reasonableness of the view sanctioned by the earlier line of authorities than to the contrary. Mr. Govinda Menon referred to certain observations in Solayappa Chetty V/s. Lakshmanan Chetty 1920 38 MLJ 146, relating to the anomaly, that may result from permitting an appeal regularly presented to be converted later on into an appeal in forma pauperis. Reference was there made to the difference in the period of limitation applicable to pauper appeals and appeals preferred in the ordinary course. I see no insuperable difficulty in the way. If the appeal has been admitted in the ordinary course, no question of limitation would really arise. If on the other hand the problem arises as a result of a return of the memorandum of appeal by the Court on a requisition for payment of a higher court-fee, the matter can be dealt with under Section 5, Lim. Act. I am unable to see where the application of Art. 181 comes in. Two other questions raised by Mr. Govinda Menon are really questions of fact and I am not satisfied that the learned Subordinate Judge has misdirected himself in dealing with them. It is admitted that the deposit in the bank which is relied on as a source available to the plaintiffs for payment of court-fee has been deposited by defendant 1 in the plaintiff's name.