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Hotha Venkataramamurthi Vs. Hota Kameswaramma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 711 of 1960
Judge
Reported inAIR1966AP276
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 5
AppellantHotha Venkataramamurthi
RespondentHota Kameswaramma and ors.
Appellant AdvocateK. Venugopal Reddy, Adv.
Respondent AdvocateK. Siva Prasadarao for ;K. Raghava Rao and ;K. Harnath Rao, Advs.
Excerpt:
civil - order 33 rule 5 of code of civil procedure, 1908 - petitioner filed application to sue as pauper - application rejected - whether petitioner should be given opportunity to pay court fees - application to sue as pauper is composite document consisting of unstamped plaint and application for permission to sue in forma pauperis - plaint still remains if application to sue as pauper rejected - court may allow petitioner to pay court fee - held, lower court will consider whether petitioner should be given time for payment of court fee. - .....a composite document consisting of an unstamped plaint and an application for permission to sue in forma pauperis. the learned judge held in the case cited above that even if the application for permission to sue in forma pauperis, is rejected the plaint still remains and the court may in the discretion allow the petitioner to pay the court fee and in each a case the suit shall be deemed to have been instituted on the date of presentation of the application.2. it was pointed out by justice wadsworth in kanthimathi animal v. ganesa iyer, air 1936 mad 101 that it is undoubtedly the practice of most courts on coming to an adverse conclusion on a pauper application, to give the appellant sometime to pay the court-fee.3. the trial court in rejecting the criminal petition in its entirety.....
Judgment:
ORDER

P. Satyanarayana Raju, C.J.

1. Having held that the petitioner was not a pauper, the lower court dismissed the original petition without giving an opportunity to the petitioner to pay the Court-fee. There is a long catena of decisions of the Madras High Court which were followed by a Division Bench of this Court in Sulemani Begum v. Ghulam Mohd. Shafi Khan, : AIR1960AP381 in all of which it was held that an application to sue as a pauper is a composite document consisting of an unstamped plaint and an application for permission to sue in forma pauperis. The learned Judge held in the case cited above that even if the application for permission to sue in forma pauperis, is rejected the plaint still remains and the Court may in the discretion allow the petitioner to pay the court fee and in each a case the suit shall be deemed to have been instituted on the date of presentation of the application.

2. It was pointed out by Justice Wadsworth in Kanthimathi Animal v. Ganesa Iyer, AIR 1936 Mad 101 that it is undoubtedly the practice of most courts on coming to an adverse conclusion on a pauper application, to give the appellant sometime to pay the court-fee.

3. The trial Court in rejecting the criminal petition in its entirety committed an error of jurisdiction. Even when the trial court held that the petitioner is not a pauper and rejected the application for permission to sue in forma pauperis, the plaint still remains on the file of the Court until it is rejected. There is no specific order of the lower court rejecting the plaint.

4. The order of the lower Court dismissing the original petition in its entirety is set aside. But the rejection of the application for leave to sue in forma pauperis will remain. The lower court will consider whether the petitioner plaintiff should he given time for payment of court fee and pass appropriate orders. For this purpose, the case is remanded to lower court.

The cost of this petition will abide and follow the result.


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