MODEL MILLS LIMITED Vs. KURBAN HUSSAIN

JUDGEMENT

(1.) 1. It is unnecessary here to-repeat the facts of this case, which are sufficiently clear from the application in revision. Defendant 1 applieant, the Model Mills Limited, Nagpur, applies for revision of the order of the Subordinate Judge, dated 24th November 1927, by which it was held that the payment of Court-fees made on 7th November 1927 dates back in effect to 17th January 1926 when the application to sue as a pauper was originally filed. The Subordinate Judge was of opinion that it was immaterial for him to decide whether the application to sue as a pauper was originally a bona fide one or was a fraudulent one. In coming to this finding he relied on the decision in Janakdhary Sukul v. Janki Koer [1901] 28 Cal. 427 and on the Privy Council decision in Stuart Skinner v. William Orde [1879] 2 All. 241. The latter decision is no authority whatever for the broad proposition the Subordinate Judge attempts to lay down. In that case, there was admittedly no question of the pauper application having originally been filed in bad faith. Indeed, the Privy Council decision in question is direct authority for the opposite view, as is apparent from the remark of their Lordships made at p. 251: Supposing there had been any fraud found by the Judge, the consideration which would determine the judgment would then have been different.

(2.) IN Gopikishan v. Bulakhidas A.I.R. 1922 Nag. 160 another case relied on by the Judge of the lower Court there was similarly no question of fraud.

(3.) THE lower Court must now re-consider the matter from this point of view. The order of 24th November 1927 is reversed and the case is remanded to the lower Court for re-trial on the merits with advertence to the above remarks. Costs (incurred in this Court will follow the event. I fix Rs. 20 as pleader's fees.