Skip to content


Malathi Madhav Potbhare Vs. Madhv Gopal Potbhare and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberPauper Petn. No. 20 of 1982
Judge
Reported inAIR1984Bom113; (1984)86BOMLR50; 1983MhLJ1056
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rule 8;
AppellantMalathi Madhav Potbhare
RespondentMadhv Gopal Potbhare and anr.
Appellant AdvocateK.N. Paradkar, Adv.
Respondent AdvocateChopugule, Adv.
Excerpt:
.....of motion taken out in proceedings -- petition withdrawn before application to sue as indigent person granted -- whether payment of court fees necessary.;from order xxxiii, rule 8 of civil procedure code it is evident that only after an application for permission to sue as an indigent person is granted that the petition is numbered and deemed to be a plaint in the suit. where a petition in forma pauperis is withdrawn before the application for permission to sue as an indigent person is granted, there is no question of payment of any court fee on the basis that it is a plaint. merely taking out a notice of motion makes no difference to this position.;mistri parshottam jinabhai v. shah motichand shamji [1963] a.i.r. guj. 277 distinguished. - - 11 it is not necessary that there..........on 3rd november. 1982. by this petition she had asked for permission to institute a suit as an indigent person and had asked for permission to institute assist as an indigent person and had asked for declarations relating to a property known as potshard building` and for further monetary reliefs against the respondents as set out in the petition. after the petition was filed under the provisions of order 33. rule 1a read with rules 212 and 213 of the high court rules on the original side an investigation into pauperism was started before the prothonotary & senior master of this court in order to decide whether the permission should be granted to the petitioner to institute a suit in forma pauperis. for the purpose some meetings were held before the prothonotary & senior master and on.....
Judgment:
ORDER

1. The Petitioner had presented a petition in forma pauperis under Order 33. Civil P.C. 1908. On 3rd November. 1982. By this petition she had asked for permission to institute a suit as an indigent person and had asked for permission to institute assist as an indigent person and had asked for declarations relating to a property known as Potshard building` and for further monetary reliefs against the respondents as set out in the petition. After the petition was filed under the provisions of Order 33. Rule 1A read with Rules 212 and 213 of the High Court Rules on the original side an investigation into pauperism was started before the Prothonotary & Senior Master of this court in order to decide whether the permission should be granted to the petitioner to institute a suit in forma pauperis. For the purpose some meetings were held before the Prothonotary & Senior Master and on a number of occasions investigation was adjourned. Before the investigation could be completed the parties settled the matter and the petitioner though her advocate applied for permission to withdraw the petition. Accordingly on 27th September 1983 the petition has been allowed to be withdrawn by the petitioner.

2. The only question that requires consideration is whether any court-fees are payable by the petitioner in these circumstances. Under O.33 R 8 it is provided as follows :

'8. Where the application (for permission to sue as an indigent person ) is granted it shall be numbered and registered, and shall be deemed to be the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner. Except that the plaintiff shall not be liable to pay any court-fee or fees payable for service of process in respect of any petition, appointment of a pleader or other proceeding connected with the suit.' Thus it is only after the application for permission to sue as an indigent person is granted under O. 33 that the petition is numbered and registered and is deemed to be a plaint in the suit. Till that point of time the petition is not deemed to be a suit and there can be no question of payment of court-fees on this petition on the basis that it is deemed to be a plaint. Since the petition is being with drawn before the application for permission to sue as an indigent person is granted, there is no question of payment of any court-fee on the basis that it is a plaint.

3. A notice was given to the State and Mrs. Chugule learned counsel for the State who appears at the hearing of this application, has submitted that in this case the petitioner took out a notice of motion dated 10th December 1982 being Notice of Motion No. 1733 of 1982. No ad interim orders were obtained on this motion and no relief has been granted on this motion. Nevertheless, it is submitted by Mrs. Chougule that this notice of motion was taken out in order to pressurise the respondent into settling the matter. This can be done only if the petition is treated as a suit and therefore an order must be made asking the petitioner to pay the court-fees. In support of her submission she relied up - on a decision of the Gujarat High Court in this case of Mistri Parshottam Jinabhai v. Shah Motichand Chamji, : AIR1963Guj277 . In that case the respondents had filed a suit to recover a sum of Rs. 4,35,000/- on the foot of a favour of the respondents. IN the suit a decree was passed the appellant for Rs.5,35,428. The appellant went in appeal from this decision asking for a credit of Rs.1,75,625. The appellant went in appeal from this decision asking for a credit of Rs. 1,75,625. The appellant was allowed to file an appeal in forma paupers. No court-fees were paid by the appellant before the filing of the appeal. Thereafter the dispute between the parties was settled and a consent decree was passed. At the point a question arose regarding payment of court-fees and it was held that in order to attract the applicability of 0.33. R. 11 it is not necessary that there should be an adjudication by the court or that the plaintiff should succeed or fail in the suit as a result of such adjudication. Such success or failure may also result from a consent decree. Accordingly the court held that the appellant had succeeded in the appeal to the extent of Rs. 86,000 by virtue of the consent decree and the appellant was directed to pay half the court fees on the said amount. The decision in that case can have no bearing on the issue in the present case. The Gujarat case dealt with a case where the application to file an appeal as an indigent person had been granted and thereafter the appeal was actually filed in 'forma pauperis' and terminated in a consent decree. Hence the provisions of O.33, Rr 10 and 11 were applicable. In the present case no adjudication has been made on the application of the petitioner to be permitted to sue as an indigent person. Therefore, no suit is deemed to have been filed and hence no court-fees are payable. . Merely taking out a notice of motion makes no difference to this position. Accordingly, since there is no question of payment of any court-fees. No further directions are required to be given as the petitioner has already withdrawn the petition.

4. Ordered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //