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Kamalamma Vs. Batchni Mariyanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 187 of 1956
Judge
Reported inAIR1960Kant140; AIR1960Mys140; ILR1959KAR403
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 47 and 144 - Order 33 - Order 7, Rule 11
AppellantKamalamma
RespondentBatchni Mariyanna and ors.
Excerpt:
.....of procedural law. in this case, it seems to me that the petitioners hoped to pay the additional court-fee, and having failed to collect the amount and pay it, allowed the plaint also to be rejected and then, as an afterthought, filed this revision petition which accordingly deserves to be rejected. i come to the conclusion that this revision petition should fail and is to be rejected......and the pauper plant, was rejected. after the rejection of the plaint, the plaintiff-petitioner filed a revision petition against the first order refusing to sue in forma pauperis. it was held that no revision lay. this case relies upon a full bench decision reported in satyanarayana charyulu v. v. ramalingam, : air1952mad86 , where it was held as follows:'where an order directing payment of additional court-fee is not complied with and it is followed by an order rejecting the plaint, a revision petition is not maintainable against the latter. the proper remedy is only by way of an appeal against the order rejecting plaint which is a decree under s. 2(2) and is appealable as such. once an appealable order in the form of an order rejecting the plaint is passed, a revision petition.....
Judgment:
ORDER

(1) The short point for decision in this petition is whether the petition is maintainable in law. The plaintiff is the petitioner and she filed a suit in the Court of the Subordinate Judge, Kolar, for refund of consideration amount under a sale deed, interest thereon and costs to be paid by the defendants and costs incurred by her in filing the suit totalling to Rs. 8,636-13-6. The suit was filed in forma pauperis. Along with the plaint she filed an application under Order XXXIII of the Code of Civil Procedure praying for permission to institute the suit in forma pauperis on the ground that she did not have the wherewithal to pay the court-fee, that she had no property except the wearing appeal and hence, was not in a position to pay the requisite court-fee. This petition was opposed by the defendants who alleged that she was in a position to pay the requisite court-fee. The learned Subordinate Judge by his order dated 23-1-1956 held that the plaintiff-petitioner was in a position to pay the court-fee and directed her to pay the court-fee, neither was there a prayer on her behalf for any extension of time. With the result, the plaint was rejected. The plaintiff-petitioner has come up by way of revision to this Court.

(2) From the records it will be seen that the affidavit filed in support of her petition is itself defective. It is not sworn to as required by law. The defendants, on the other hand, filed an affidavit challenging her statement that she is a pauper. They alleged that she was possessed of valuable moveable as well as immovable properties. To this affidavit filed by the defendants (respondents) no reply was filed by the petitioner though she was given a couple of chances to do so. There is no evidence on her behalf to show that she is not in a position to pay the requisite court-fee. She has not entered the witness-box. Neither has she examined any witnesses in support of her allegation. Mr. Shankara Reddy, the learned Advocate for the petitioner states that there is a report by the Deputy Commissioner to the effect that she is not in possession of any properties. But that report by itself, I do not consider, to be sufficient, to establish her pauperism. It was her duty to give a proper affidavit and not only that but also to satisfy the Court that she was not in a position to pay the requisite court-fee. Hence on facts I find that the learned Subordinate Judge was right in disallowing her contention and calling upon her to pay the court-fee on the plaint.

(3) As I have stated already, time was given to her to pay the court-fee by 31-1-1956. But she did not do so. She did not even pray for any extension of time to pay the court-fee. The result was the rejection of her plaint and so, the question arises as to what is the remedy open to her. Can she come up to this Court by way of revision? Has she no other remedy open to her which she could have profitably resorted to. As it is this revision petition is filed as though the subsequent order of the learned Subordinate Judge is not in existence. On the other hand, a final order has been passed rejecting her plaint and that comes within the definition of a decree as per S. 2(2) of the Civil Procedure Code where 'decree' is defined as follows:

'Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. 'It shall be deemed to include the rejection of a plaint' and the determination of any question within S. 47 or S. 144, but shall not include:

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.'

The portion that is underlined (here in '........') above emphasises that the decree includes rejected of plaint. As against that final order D/- 31-1-1956 no revision lies but only an appeal. When once that order is passed, there can be no revision against the first order calling upon the plaintiff-petitioner to pay the court-fee on the plaint. That order has become merged in the subsequent order and is of no effect whatsoever and hence there can be no revision against the previous order.

(4) I am supported by authority regarding the proposition so enunciated. In a decision reported in In re Bommisetty Ramayamma, : AIR1954Mad880 , it has been held as follows:

'Where a plaint, on which additional court-fee is required to be paid, is rejected under Order 7, R. 11 Civil Procedure Code, for default of payment of additional court-fee within the time granted, the remedy of the plaintiff is to file an appeal against the order rejecting the plaint, which is a decree under S. 2(2) Civil procedure Code and not to file a revision against the order requiring the payment of the additional court-fee. If the plaintiff wants to file such a revision, he should do so before the plaint is rejected; and if he waits till the rejection of the plaint, his remedy lies only in filing an appeal, and not in filing a revision petition. This applies to the rejection of the plaint of a would-be pauper also; for, a would-be pauper, who has to pay additional court-fee does not stand on a better footing than an original non-pauper who has to pay additional court-fee. Once a man is refused to be treated as a pauper, by an order of Court, he at once becomes a declared non-pauper, and there is no distinction after such refusal, between the would-be pauper and an original non-pauper.'

This case is on all fours with the facts of the present case. Even in that case there was a plaint presented. Along with that was the petition for leave to sue in forma pauperis. The petition was rejected and the plaintiff-petitioner was directed to pay the court-fee due on the plaint and ten days time was fixed for the purpose. The petitioner failed to pay the court-fee within the time fixed and the pauper plant, was rejected. After the rejection of the plaint, the plaintiff-petitioner filed a revision petition against the first order refusing to sue in forma pauperis. It was held that no revision lay. This case relies upon a Full Bench decision reported in Satyanarayana Charyulu v. V. Ramalingam, : AIR1952Mad86 , where it was held as follows:

'Where an order directing payment of additional court-fee is not complied with and it is followed by an order rejecting the plaint, a revision petition is not maintainable against the latter. The proper remedy is only by way of an appeal against the order rejecting plaint which is a decree under S. 2(2) and is appealable as such. Once an appealable order in the form of an order rejecting the plaint is passed, a revision petition cannot also be filed against the earlier order demanding additional court-fee. Such a petition is against the well-established principles of procedural law.' His Lordship Panchapakesa Aiyer J., who was a party to the Full Bench, had also decided the case reported in : AIR1954Mad880 . In a brief judgment delivered in the former Full bench case he states as follows: 'In my opinion, any party who is aggrieved by an order calling for an additional court-fee should at once take a copy of that order and file a revision petition to this Court, and get a stay, if he does not want to pay the additional court-fee and only wants time to file a revision petition. If he waits till the time granted for paying the additional court-fee expires and the plaint is rejected and does not even request the court before the plaint is rejected to grant him time for getting copies to file a revision petition, in which case the Court will certainly grant a reasonable time, he cannot afterwards file a revision petition as his remedy then is only an appeal. In this case, it seems to me that the petitioners hoped to pay the additional court-fee, and having failed to collect the amount and pay it, allowed the plaint also to be rejected and then, as an afterthought, filed this revision petition which accordingly deserves to be rejected.'

Following the principles laid down in these decisions. I come to the conclusion that this revision petition should fail and is to be rejected. It is so ordered.

(5) In the circumstances of the case, however, I order each party to bear his or her own costs of this Court.

(6) Petition dismissed.


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