1. This is a civil revision petition filed against the decree of the Subordinate Judge of Kumbakonam passed in S.C.S. No. 218 of 1937. The plaintiff whose suit was dismissed in the lower Court is the petitioner before me.
2. The suit is for the recovery of a sum of Rs. 941-11-4 against the defendants. The suit was originally filed in the Presidency Town Small Cause Court, Madras. That Court held that it had no jurisdiction to try the suit and passed an order returning the plaint to be presented to the proper Court. When making that order, it is admitted that there was a condition attached to it, namely, that the costs of the defendants should be paid before the suit was presented in the proper Court. Without paying the costs so directed, the plaintiff presented the plaint in the Court of the Subordinate Judge of Kumbakonam. Objection was taken that such institution is improper and the amount was tendered in December, 1937. The cause of action is said to have arisen in the beginning of 1935. So even taking it that the suit itself was re-presented in the Kumbakonam Court on the day when the amount was tendered, the suit would be within time and the Court might well have treated the suit as having been presented on that day. In this view, the dismissal of the suit appears to me to be improper.
3. But that apart, I do not see what jurisdiction the Court has in passing an order under Order 7, Rule 10 to impose a condition that the plaintiff whose plaint is returned for presentation to the proper Court shall, before presenting it to that Court, pay the costs as a condition precedent. Order 7, Rule 10 imposes the duty on every Court that it shall at any stage of the suit return a plaint to be presented to the proper Court. If Order 7, Rule 10 had stood alone, it would be open to argument that the Court making such an order would have no jurisdiction even to direct that the plaintiff should pay the costs to the defendants. But Section 35 which provides for the jurisdiction of a Court to award costs says that the fact that the Court had no jurisdiction to try the suit shall be no bar to the exercise of the power. This only means that when directing a plaint to be presented to the proper Court, the Court making that order may also direct the plaintiff to pay the costs of the other side. It has no power to add a further rider that the payment of costs should be a condition precedent to the filing of the suit in the proper Court. When the Legislature wants to give such power to the Court, it has made express provision. In Order 23 where the Court allows the plaintiff to withdraw the whole or any part of his claim with liberty to file a fresh suit, there is the rule that the Court may allow the suit to be withdrawn with liberty to institute a fresh suit on such terms as it thinks fit and it has been held under that rule that the Court may impose a condition that the payment of costs ordered should be a condition precedent for the filing of a fresh suit in respect of the same subject matter. Order 33, Rule 15 provides that where an application for leave to sue in forma pauperis is rejected, it shall be a bar to any subsequent application of the like nature and that the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs, if any, incurred by the Government and by the opposite party in opposing his application for leave to sue as a pauper. In considering this provision (Order 33, Rule 15) a Bench of this Court has held in Ramakrishna Nadar v. Ponnayya Thirumalai Vandaya Thevar : AIR1936Mad24 that the suit must be taken to have been instituted the next moment after the payment of the costs. The suit was instituted without paying the costs but the costs were paid afterwards. Then they say:
We think it will be sufficient to say that the suit must be treated as one instituted on the 2nd of March, 1932 and dealt with on that basis.
4. In this case on the date when the amount was tendered the suit was well within time.
5. The decree of the lower Court is set aside and the suit is remanded to be disposed of on the merits. The respondents will pay the costs of the petitioner in this Court. The amount of costs that was tendered by the plaintiff and was refused to be accepted by the defendants will be paid to the respondents' counsel here within a fortnight. The other costs will abide the result.