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Mst. Mojiza Khatoon Vs. Mst. Sayeed Fatma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 489 of 1951
Judge
Reported inAIR1957All752
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 7
AppellantMst. Mojiza Khatoon
RespondentMst. Sayeed Fatma and ors.
Appellant AdvocateAqiq Hasan, Adv.
Respondent AdvocateSyed Sadiq Ali, Adv.
DispositionApplication dismissed
Excerpt:
civil - pauper - order 33 rule 7of code of civil procedure, 1908 - pendency of application to sue as pauper - payment of court-fee on reduced claim - not maintainable. - .....be paid even though the claim hadbeen reduced. if as was admitted the applicant was not in fact a pauper the application under i order 33 was bound to be rejected. the applicant could then file a plaint with proper court-fee.2. the contention on behalf of the defendant-applicant appears to be entirely untenable, as required by order 33, rule 2 the application for permission to sue as a pauper contained all the particulars in regard to a plaint. in addition it contained a schedule of the property possessed by the applicant and a prayer that she may be allowed to sue as a pauper. the application had been signed and verified as a plaint. before the application could be finally disposed of the applicant found that she was in a position to pay court-fee provided she reduced her claim. she.....
Judgment:

Srivastava J.

1. The opposite party No. 1 filed an application for permission to sue as a pauper. In that application she claimed Rs. 10,000/- with interest thereon and also claimed- certain amount as damages for certain moveables. While this application was pending she applied to the Court that she be permitted to reduce her claim to a sum of Rs. 10,000/-only and be permitted to pay court-fee thereon. This application was allowed. She paid court-fee and her application was ordered to be registered as a plaint.

Against this order one of the defendants has come up in revision and contends that the learned Civil Judge before whom the application for leave to sue had been filed, had no jurisdiction to convert the application into a plaint and to allow court-fee to be paid even though the claim hadbeen reduced. If as was admitted the applicant was not in fact a pauper the application under I Order 33 was bound to be rejected. The applicant could then file a plaint with proper court-fee.

2. The contention on behalf of the defendant-applicant appears to be entirely untenable, As required by Order 33, Rule 2 the application for permission to sue as a pauper contained all the particulars in regard to a plaint. In addition it contained a schedule of the property possessed by the applicant and a prayer that she may be allowed to sue as a pauper. The application had been signed and verified as a plaint. Before the application could be finally disposed of the applicant found that she was in a position to pay court-fee Provided she reduced her claim. She therefore applied to be permitted to reduce her claim and to pay court-fee on the amount of the reduced claim. There appears to be nothing in Order 33. C. P. C., which could prevent her from doing so.

3. In the case of Stuart Skinner Nawab Mirza v. William Order, reported in ILR 2 All 241 (A) a person had applied for permission to sue as a pauper. Pending an enquiry into his pauperism he obtained funds which enabled him to pay the court-fee. The Court thereupon permitted him to pay the court-fee and registered the plaint. An objection was raised to this procedure. It was: also contended that for the purposes of limitation the plaint was to be treated as having been filed on the date on which court-fee was paid and not on the date on which the petition for leave to sue as pauper had been originally filed.

The case went up to the Privy Council and their Lordships, while dealing with the appeal, laid down in clear terms that the plaintiff could have been allowed on Payment of proper court-fee to continue the petition as a plaint and even for the purposes of limitation the suit could be deemed to be instituted on the date on which pauper petition had been filed and not on the date on which the court-fee had been paid.

4. Quite recently in the case Of Mst. Lastif-un-Nissa v. Mst. Khair-un-Nissa, reported in (S) AIR 1955 All 53 (B) a Pull Bench of this Court laid down five propositions which were settled law in relation to pauper suits. The third proposition was in these terms:

'The petitioner can so long as the application is pending pay the court-fees and if court-fees are accepted the plaint will date back to the date of the original application.'

5. This provides an effective answer to the contention of the learned counsel for the applicant.

6. It was said that the prayer of the plaintiff should not have been granted by the learnedCivil Judge because she had practised fraud onthe Court. There is, however, no finding aboutany such fraud; nor could the materials on therecord justify any such finding.

7. Under the circumstances, we think thatno case for interference with the order of theCourt below has been made out. The applicationis, therefore, dismissed with costs. As the application itself is being dismissed the interim orderfor stay is discharged. The record will now besent back immediately to the Court below forearly disposal.


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