1. This S. R. purports to be filed as a civil miscellaneous appeal against the order of the City Civil Court refusing leave to file a suit in forma pauperis on the ground that the appellant is possessed of means.
2. A preliminary point for determination is whether this is maintainable as a civil revision petition or civil miscellaneous appeal. It has been held by this Court recently that When an application to file a suit in the pauper form is rejected and time is given for the payment of court-fee and then the court-fee is not paid within the time prescribed, the remedy of the petitioner is not by way of a revision against the order rejecting the original petition for non-payment of the court-fee but by way of an appeal. The decisions bearing on this subject have been reviewed in my order in Venkatammal v. Mathu Krishna Naidu, S. R No. 13674 of 1957, dated the 23rd July, 1957 (Mad) (A) wherein I followed Bommi Setti Ramayamma In re, : AIR1954Mad880 (B) and Satyanarayanacharyulu v. Ramalingam, : AIR1952Mad86 (FB) (C) and dissented from Munian v. Kesava Pandithan, : AIR1955Mad467 (D). That case was not allowed to he filed as a civil revision petition and the party was directed to file an appeal if she was so advised.
3. This case cannot therefore be filed as a civil revision petition. It can be filed only as a civil miscellaneous appeal, which is what the petitioner has purported to do.
4. The next question that arises is as to the court-fee chargeable under Section 52 of the Court-fees Act, 1955. In regard to this there are three possible views.
5. The first view is that ad valorem court-fee is payable as in the suit on the value of the subject-matter of the suit. The argument for this view is neatly summed up in the judgment of Grille, T. C. in Ganapathi v. Venkatesh, AIR 1935 Nag 83 (E). This argument has not however been accepted in the Bench decision of this Court in Kaliappa v. Kandasami, ILR 1938 Mad 981: AIR 1938 Mad 498 (F). The previous decision of Schwabe C. J. in S. R. No. 1923 of 1923 (Mad) (G) set out in extcnso at pages 423-426 of Satyamurthi Aiyar's Court Fees Act is followed in the above decision Kaliappa v. Kanda-swami (F), and the view of Pollock A. J. C. in. the above Nagpur case has been preferred to that of Grille J. C. Vide also Apparao v. Mt. Bhagubai . Where the limitation permits, rejection of plaint does not preclude a subsequent suit on payment of court-fee and it would be unreasonable in such cases to levy the same ad valorem fee on an appeal from the rejection of plaint. It would be impracticable and inexpedient to apply a different rule where a second suit would be barred by limitation because the question whether there is such a bar may then have to be decided for the purpose of court-fee.
6. The second view is that the court-fee is payable on the amount of court-fee payable in the suit. Both the Madras and Nagpur decisions cited above related to cases where there was a dispute as to the amount of court-fee and court-fee was held payable on the difference between the court-fee paid and that demanded. Even in such cases, it is possible that a second suit would be barred by limitation and the plaintiff may lose his remedy altogether if the order appealed against is allowed to stand. But such considerations have not weighed with their Lordships. There is no case relating to rejection of plaint consequent on refusal of leave to sue in forma pauperis. If the principle of the above decision can be extended to this case an ad valorem fee on Rs. 1,658-25 np. being the ad valorem fee on the amount of claim viz., Rs. 22,105 will have to be levied.
7. The third view is that the subject-matter of the appeal is only the right to seek his remedy on a scheme of deferred payment of court-fee. Schwabe C. J. in the judgment cited above has observed thus :
'The question is whether this case has to be heard or not and I confess that I had considerable doubt whether it is not more correct to say that the real subject-matter is whether the case is to be heard or not'
and remarked that if the subject-matter in dispute were not the difference between the two fees, it would be a subject-matter which is incapable of valuation. (Vide extract at page 426 of Satyamurthi Aiyar's Court-fees Act). This is also the view taken in an earlier Nagpur case Govinda v. Bansilal, (I). This view no doubt was not approved of in the Bench decision in ILR 1938 Mad 981: AIR 1938 Mad 498 (F), (vide remark at page 983 of ILR Mad); (at p. 499 of AIR). But that was with reference to a case where there was a dispute as to court-fee and the appellant's contention was that he was not at all liable to pay the extra court-fee demanded for the prosecution of the appeal, In this case the petitioner does not contest the liability to pay court-fee but seeks his remedy in pauper form. Therefore the third view seems to me to be the one which may be adopted in this case.
In this view the court-fee payable under Section 52 read with Section 50 would be Rs. 200.
8. The Office note is answered accordingly.