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R. Kamala Alias Chellu Alias Mrs. L.S. Parthasarathi Vs. K. Rajagopalachari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 195, 196 and 218 of 1961
Judge
Reported inAIR1963Mad305
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 33, Rule 15
AppellantR. Kamala Alias Chellu Alias Mrs. L.S. Parthasarathi
RespondentK. Rajagopalachari and ors.
Appellant AdvocateK. Raman, Adv.
Respondent AdvocateJayalakshmi Shanmugavel (amicus curiae)
DispositionPetitions dismissed
Cases ReferredRathnavarma Raja v. Smt. Vimala
Excerpt:
- - as is clear from the decretal order, in the original petitions, the petitioner was directed to pay costs to respondents 8 and 9. the first respondent unsuccessfully filed an appeal to this court. an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application for the like nature by him in respect of the same right to sue; vimala, [1961]3scr1015 .but it said that, if the trial court proceeded on a wrong interpretation of the order of this court, particularly the words 'if otherwise in order' that would clearly be an error which this court can set right in revision......the court below declining leave to sue in forma pauperis, but permitted the respondent to have the plaint registered as suit on payment of court-fee of rs. 100. this was not subject to any condition as to payment of costs ordered earlier by the trial court in the petition for leave to sue in forma pauperis. had it not been for the composite order passed by this court in that manner, something could have been said in favour of the petitioners, that the suit could not be registered without the fitst respondent having paid the costs ordered in the original petition. order 33 rule 15 is to the effect:'an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application for the like nature by him in respect of the same right to sue; but the applicant shall.....
Judgment:
ORDER

Veeraswami, J.

1. These petitions are against the order of the Subordinate Judge of Tiruchirapalli directing registration of the suit of the first respondent in that Court. The suit was originally brought by him in the form of an original petition for leave to sue in forma pauperis. Leave was refused; but time was granted for payment of the court-fees. There was also a provision in the order declining leave, that, in default of payment of the court-fee within the specified time, the petition would stand rejected.

As is clear from the decretal order, in the original petitions, the petitioner was directed to pay costs to respondents 8 and 9. The first respondent unsuccessfully filed an appeal to this Court. While dismissing the appeal, this Court observed that the plaintiff would be allowed to drop from the plaint certain reliefs on a petition to the Court for the purpose, and at the same time indicated that in respect of the other prayers, court-fee payable was a fixed court-fee of Rs. 100. This Court then observed:

'The appellant is prepared to pay that amount, and he wants only time to pay it within a stipulated time after the receipt of records in the lower Court. The plaintiff will be allowed to amend the plaint in the lower Court giving up these reliefs, and pay the fixed court-fee of Rs. 100 within one week of the date of the receipt of the records in the Court of the Subordinate Judge. On receipt of the court-fee, the suit will have to be registered, If otherwise in order. The appeal is dismissed.'

2. When the matter went back to the Court of first instance, the first respondent applied for amendment of the plaint to drop the said prayers, which was allowed. It would appear to have been contended that the words 'it otherwise in order' in the order of this Court did not enable the first respondent to escape from liability to pay court-fee in respect of prayers for injunction, recovery ofmoveables and mesne profits on the view that the question of court-fee was finally settled by the order of this Court dated 23-10-1959. I am told that a further argument was also addressed based on Order 33 Rule 15 C.P.C. but it was not dealt with by the trial Court.

3. Two points have been urged in this Court. One of them is based on Order 33 Rule 15 and in respect of this contention, my attention has been drawn to a number of decided cases. But none of these cases seem to be directly in point, because in the instant case this Court, on 23rd October 1959, passed a composite order in which not only it confirmed the order of the Court below declining leave to sue in forma pauperis, but permitted the respondent to have the plaint registered as suit on payment of court-fee of Rs. 100. This was not subject to any condition as to payment of costs ordered earlier by the trial Court in the petition for leave to sue in forma pauperis. Had it not been for the composite order passed by this Court in that manner, something could have been said in favour of the petitioners, that the suit could not be registered without the fitst respondent having paid the costs ordered in the original petition. Order 33 Rule 15 is to the effect:

'An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application for the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such rfght provided that he first pays the costs (if any) incurred by the State Government and by the opposite party in opposing. his application for leave to sue as a pauper'.

4. Siva Rao v. Ramajoga Rao : AIR1943Mad547 and Ramakrishna Nadar v. Thirumalal Vandaya Thevar : AIR1936Mad24 were cases of second applications and it was held by this Court that non-payment of costs would be a bar to such applications. The point did not directly arise in Uthuman Pillar v. Md. Usuf, AIR 1939 Mad 316, but King J. recognised the principle that a suit instituted following the refusal to grant leave to sue in forma pauperis, should necessarily comply with the mandatory requirements of Order 33 Rule 15.

Kandaswami Naicker v. Raju Naicker, : AIR1960Mad313 , does not have to deal with a situation arising out of a composite order in which there was a direction that the plaint should be registered subject to certain soecific conditions. What distinguishes the instant case from the cases cited by the learned counsel for the petitioner is that this Court, unlike in these cases cited, directed on the former occasion that on payment of the court-fee of Rs. 100 the suit should be registered. In view of this clear direction by this Court in the earlier appeal, the point is no longer open for the petitioner to contend that the suit could be registered only if the costs in the original petition had been paid as a condition precedent. The point based on Order 33 Rule 15 is therefore rejected.

5. The other point argued by the petitioners is rested upon the words 'if otherwise in order' in the order of this Court dated 23rd October 1959. It is clear from a reading of the entire order of this Court that, so far as the question of court-fee is concerned, it was finally settled by it. There is no room for the assumption that by the words 'if otherwise in order' the question of court-fee was still to any extent left open, to the trial Court to decide. This Court, on the earlier occasion, had the entire plaint before it, and was aware of all the prayers including the alternative prayer therein. This Court then thought that, by dropping the particular prayers, the plaint would attract only a payment of court-fee of Rs. 100.

Apart from this aspect, there is also the point raised for the first respondent that the petitioners being defendants, they cannot maintain this petition under Section 115 C. P. C. because no error of jurisdiction arises. It has been so decided by a Full Bench of this Court. Recently the same view has been taken by the Supreme Court in Rathnavarma Raja v. Smt. Vimala, : [1961]3SCR1015 . But it said that, if the trial Court proceeded on a wrong interpretation of the order of this Court, particularly the words 'if otherwise in order' that would clearly be an error which this Court can set right in revision. The jurisdiction of the Court extends to decide rightly or wrongly and it is not every wrong decision that will attract Section 115 C.P.C. To apply that section, there must be an error of law involving jurisdiction. There Is none such here. The second point fails.

6. The petitions are dismissed. No costs.


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