DHULIPALLA BRAHAMARAMBA Vs. DHULIPALLA SEETHARAMAYYA

JUDGEMENT

(1.) One Dhulipala Venkata Subba Rao and his two minor brothers, Sreedhara Rao and Butchaiya, filed an application in the Court of the Subordinate Judge, Tenali, asking to be allowed to sue in forma pauperis for a decree for the partition of immoveable property. The application complied with all the requirements of the Civil P. C. with regard to a plaint. The document was in form and substance a plaint, coupled with a prayer to be allowed to sue without payment of the Court-fee. Before the Court had time to inquire into the alleged pauperism of the petitioner, Dhulipala Venkata Subba Rao died. Thereupon, his mother, the petitioner now before us, applied to be brought on the record as his legal representative and to be allowed to continue the suit in his place.... She signified her willingness to pay the Court- fee. The Subordinate Judge relying on the judgment of Horwill, J., in Anasuyamma V/s. Subba Reddi dismissed the application. The petitioner then asked this Court to set aside the order of the Subordinate Judge in the exercise of its revisional powers. In the first instance the matter came before Happell, J., who referred it to a Bench for decision. In his order of reference the learned Judge pointed out that the decision of Horwill, J., was in conflict with the judgment of Bardswell, J., in Duraipandiya V/s. Solaimalai Pillai (1934) 67 M.L.J. 332 : I.L.R. 58 Mad. 169.

(2.) It follows from what we have said that the question involved is whether the legal representative of a person who dies during the pendency of an application to be allowed to sue in forma pauperis can be brought on the record and allowed to prosecute the suit on payment of the requisite Court-fee. The decision of the question requires the consideration, not only of the two cases referred to, but of the judgment of the Privy Council in Stuart Skinner V/s. William Orde etc. (1879) L.R. 6 I.A. 126 : I.L.R. 2 All. 241 (P.C.) and of other authorities. The judgment of the Privy Council in Stuart Skinner V/s. William Orde etc. (1879) L.R. 6 I.A. 126 : I.L.R. 2 All. 241 (P.C.) has a very important bearing on the question under discussion, but its effect has not always been properly understood. There, a person applied for leave to sue as a pauper, but pending the inquiry into his alleged pauperism he obtained funds which enabled him to pay the Court-fee. He was allowed by the Court to pay the Court fee, whereupon his petition was numbered and registered as a plaint. The Judicial Committee held that in those circumstances the suit should be deemed to have been instituted from the date when the petition to sue in forma pauperis was filed and that limitation ran against him only upto that time. The Civil P. C. of 1859 was then in force. After referring to its provisions with regard to applications to sue informa pauperis Sir Montague E. Smith, in delivering the judgment of the Board, said: Therefore it "(the petition)" contains in itself all the particulars the statute requires in a plaint, and, plus these, a prayer that the plaintiff may be allowed to sue in forma pauperis. Later in the judgment Sir Montague E. Smith said: Although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in the Indian Courts, that a wrong stamp is put upon the plaint originally, and the proper stamp is afterwards affixed. The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it. There is no essential difference between an application to sue in forma pauperis under the present Code and an application under the Code of 1859.

(3.) It follows from what was said in the judgment in Stuart Skinner V/s. Williams Orde-etc. (1879) L.R. 6 I.A. 126 : I.L.R. 2 All. 241 (P.C.) that such an application is in fact a plaint coupled with a prayer to be allowed to sue without payment of the required Court-fee. A plaint which does not bear the Court-fee prescribed by law, in whole or in part, can by reason of Section 149 of the present Civil P. C. be stamped with the permission of the Court at any stage and when this is done the document has the same force and effect as if the fee had been paid in the first instance. There were no such provisions in the earlier Codes.