1. This revision petition is directed against the order of the District Judge, Bangalore, rejecting I. A. No. 3 filed by the plaintiff in O. S. NO. 81 of 1951-52.
2. The said original suit was filed by the plaintiff for partition and possession of his l/4th share in the family properties, alleging that he was in joint possession, on payment of a fixed court-fee of RS. 50/-. Later, an amendment of the plaint to include a prayer for cancellation of a release deed was sought for and granted by the Court. In consequence of the amendment granted, the plaintiff was required to pay an additional court-fee of Rs. 975/-. Pleading his inability to meet the heavy demand, he filed an application (I A. No. 3) under Order 33, Rule 1, Civil P. C., through his counsel for permission to continue the suit as a pauper. The trial Court held that such an application in pending proceedings is not maintainable.
3. Mr. Rama Rao, the learned Advocate for the respondent, frankly admitted that he is unable to support the order of the trial Court on the grounds mentioned therein, but contended that the application is liable to be rejected on other grounds. I am unable to agree with the learned District Judge that the suit filed in the ordinary way could not be continued at a later stage as a pauper suit. It is a recognised principle that the Court which has the power to permit, on certain grounds, the institution of a suit in forma pauperis, be deemed to possess power to continue the suit on similar grounds at a later stage provided the then circumstances justify such a course.
In -- 'Mahomed Fateh Nasib v. Saradindu Mukerjee', : AIR1936Cal221 , where a suit had been registered as an ordinary suit and the plaintiff did not pay the deficient court-fee but applied for permission to continue the suit as a pauper, it was held that the application should not be rejected on the ground that the suit had already been registered as an ordinary suit.
It was contended by the respondent that the plaintiff, not having paid the requisite court-fee as directed, the suit should have been dismissed under Order 7, Rule 11, Civil P. C. Order 7, Rule 11, does not apply to applications to sue in forma pauperis. When the plaintiff is given time to make up the deficiency in the court-fee and within the time so allowed, he applies for permission to continue the suit as a pauper, the application should be considered on merits and the plaint should not be rejected for failure to pay the deficient court-fee (Vide -- 'Surendra Chandra v. Showdamini Roy' : AIR1933Cal238 . The same High Court has laid down in -- ' : AIR1936Cal221 ' that
'the mandatory provisions contained in Order 7, Rule 11, are intended for cases when no other complications intervene and the Court has sufficient inherent power to depart from the normal procedure to suit the exigencies of the situation.'
Order 33 prescribes a special procedure to aid a person not having sufficient means to pay the court-fee to institute a suit as a pauper provided he fulfils the conditions laid down in the said Order and there is no prohibition to extend the benefit of the said provision at any stage of the suit or to withdraw the concession and dispauper the suitor if circumstances justify such a procedure.
4. It is next argued that the application is liable to be rejected on the ground that it was not presented in person as required by Rule 3 of Order 33. Rule 1 of Order 33 enables the filing of suits in forma pauperis. Rule 2 prescribes the contents of the petition to include a plaint in detail and under Rule 3, the application has to be presented in person or by a duly authorised agent. Rule 8 provides for registration of the application, when admitted, as a regular suit. This procedure is essentially meant for applications instituted in forma pauperis at the inception. When a suit has already been registered in the ordinary way, it is obviously unnecessary to include a plaint as required under Rule 2. In a similar case -- 'Subba Rao V. Venkataratnam', AIR 1929 Mad 828 (C), the Madras High Court held that an application should not be dismissed because it was not in accordance with Rules 2 to 8 of Order 33, Civil P. C., but the Court in the exercise of its inherent power should dispose of the application on merits after notice to the opposite side. The respondent relied upon a recent decision reported in -- 'Parvathi Ammal v. Meenakshi Ammal', : AIR1951Mad841 (D) in support of the proposition that an application presented not in person by the applicant but through the counsel was held to have been not validly presented under Order 33. That case is distinguishable from the facts of the present petition, as in that case it was held to be a fresh suit and not an application in pending proceedings to continue the suit as a pauper. In that case, the original plaint was returned as not being within the jurisdiction of the Court, and the case ended. It was re-presented after making an amendment suo motu to bring it within the jurisdiction of the same Court. It was therefore held that being a fresh suit the petitioner had not complied with the provision that it should have been presented in person.
In the circumstances of the present case, there is no doubt that an application to continue the suit as a pauper is maintainable and should have been enquired into and disposed of on merits. I, therefore, set aside the order of the trial Court and remit the application back for disposal on merits. The costs of this petition will be costs in the cause and will abide the final result; Advocate's fee is Rs. 15/-.
5. Case remanded.