P.T. Raman Nayar, J.
1. These petitions arise out of seven suits brought by the same plaintiffs, and they pose a question under Order XXXIII of the Code which seems to be well nigh bereft of authority.
2. The suits were initially brought by four plaintiffs after obtaining permission to sue as paupers. Plaintiffs 2 to 4 were minors and one Bhargavi Amma was their next friend. (She still is the next friend o plaintiffs 3 and 4; the 2nd plaintiff attained majority during the pendency of the suits and he has obtained an order discharging the next friend and granting him leave to proceed in his own name). Subsequently, it seems to have been discovered that this Bhargavi Amma was a necessary party, and, on application duly made, she joined as a plaintiff in her own right and became the 5th plaintiff.
This she did without paying any court-fee andwithout obtaining permission to sue as a pauper.On 18-8-1958, eight months after the 5th plaintiffthus came on record, the trial court woke up tothese facts and directed the plaintiffs to pay thenecessary court fee in all these seven suits andgave them time until 16-9-1958 for the purpose.Against this order the five plaintiffs have come upin revision. ,
3. I do not think that the order can be upheld so far as plaintiffs 1 to 4 are concerned. Having been given leave to sue as paupers, under Rule 8 of Order XXXIII, their application has become a plaint and they are entitled to proceed with the suit in the ordinary manner without paying any court-fee. The only provisions under which they can be called upon to pay court fee are Rules 10, 11 and 11A, and a perusal of these rules will show that there are only two contingencies in which they can be called upon to pay court fee before the termination of the suit. One is where they are dispaupered under Rule 9, and the other where part of the claim is abandoned. Neither has happened in this case.
The court below has no doubt observed that there is no case that the 5th plaintiff is a pauper. It is said that this observation is incorrect, but it is not necessary for me to go into that question. It is sufficient to observe that the procedure required for a dispaupering under Rule 9 has not been followed, and that there is no order of the court dispaupering plaintiffs 1 to 4 under that rule. And I might add that it seems to me extremely doubtful from the wording of clause (b) of that rule whether a plaintiff who has obtained permission to sue as a pauper can be dispaupered because somebody who has the means to pay the court fee has joined him as a co-plaintiff.
4. With regard to the 5th plaintiff, however, I think that the order of the court below is right. Ordinarily in view of the provisions of the Court-fees Act, the plaint in these suits should not have been entertained without the payment of the requisite court fee. It was only by reason of the application of plaintiffs 1 to 4 for permission to sue as paupers being granted that under Rule 8 of Order XXXIII the application became a plaint.
When the 5th plaintiff joined as a plaintiff without having obtained permission to sue as a pauper, the plaint in so far as she was concerned, became a document which since, the exemption under Rule 8 of Order XXXIII was not available to her, the court could not act upon without the payment of the requisite court fee. But under Section 149 of the Code, the court could, at any stage, allow her to pay the court fee due, and, so far as the 5th plaintiff is concerned, that seems to be just what the court below has done.
5. It has been argued on behalf of the plain, tiffs that Rules 8 and 11 of Order XXXIII make it clear that where a suit has been brought in forma pauperis, any person can subsequently join as a co-plaintiff without paying court fee however rich he might be. Rule 8 which says that the suit shall proceed in all other respects except the payment of court fee as a suit instituted in the ordinary manner, applies only to a plaintiff whose application for permission to sue as a pauper has been granted. The Rule has no application to a person like the present 5th plaintiff who has obtained no such permission.
Rule 11, no doubt, says that when any of the contingencies mentioned therein happens the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fee; and the argument is that this shows that a person added as a co-plaintiff need not pay any court fee until an order has been made under this rule. For, if a person can subsequently join as a co-plaintiff only on paying the requisite court fee, there would be no question of calling upon him to pay court fee under Rule 11.
6. I must confess that Rule 11 makes for some difficulty, but I am inclined to think that the co-plaintiff referred to therein must be a person who has been subsequently added as a plaintiff, either on payment of part alone of the court fee due on the original plaint because he seeks only a part of the reliefs, or on obtaining leave to sue as a pauper. However that might be, I do not think that Rule 11 can be construed as nullifying by implication the clear and explicit provisions of the Court-fees Act under which no plaint can be received without the payment of the requisite court fee.
It is only by reason of Rule 8 of Order XXXIII of the Code that, on an application for permission to sue as a pauper being granted, the application is deemed to be a plaint in the suit notwithstanding that no court fee has been paid. Rule 8, as we have seen, does not apply to the 5th plaintiff who has obtained no such permission, and it necessarily follows that she has to pay court fee if she wants to proceed with the suit. That Rule 11 provides for the collection of court fee from a person subsequently added as a co-plaintiff to the suit, in certain contingencies, cannot, in my view, have the effect of exempting him from the provisions of the Court-fees Act. That exemption, it seems to me, resides only in Rule 8.
7. If the contention advanced on behalf of the petitioners were to be accepted, it would, as pointed out by the lower court, lead to what it has chosen to call a very funny position. A rich person could always create some sort of nominal interest in a pauper and, after having got him to institute a suit in forma pauperis, join as a plaintiff and seek reliefs for himself without having to pay any court fee. Surely this cannot be the law.
8. The only decision cited before me Is Ganapathy Pattar v. Velayudhan Nair, 11 Cochin LR 122. That decision is no doubt in favour of the plaintiffs, for, it says that, on a defendant being transposed as a co-plaintiff, a suit instituted in forma pauperis can be continued as such even though the person so transposed be a person of means. That the transposition there was for the purpose of getting rid of the bar in the proviso to Order 32, Rule 4(1) and qualifying the defendant concerned to act as next friend of two of the minor plaintiffs makes no difference. On transposition he is nonetheless a plaintiff liable under the Court-fees Act to pay court fee on the plaint. There is however no discussion in the judgment and with due respect I am unable to accept it as laying down the correct law.
9. It is said that plaintiffs 3 and 4 have also attained majority and that the 5th plaintiff can now be discharged from her office of next friend under Rule 12 of Order XXXII without being obliged to furnish security which she would have had to furnish were she to retire of her own accord under Rule 8. After such discharge, it is said, she can transpose herself as a defendant whereupon there would be no question of paying court fee- With all this I am not concerned, and I am afraid I must leave the 5th plaintiff to her own devices.
10. I allow the petitions so far as plaintiffs 1 to 4 are concerned and set aside the order of the court below directing them to pay court fee. I dismiss the petitions so far as the 5th plaintiff is concerned, and the order directing her to pay court fee will stand. She is given one month's time from today for the purpose. I make no order as to costs.