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Parvathi Ammal Vs. Meenakshi Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 406 of 1949
Judge
Reported inAIR1951Mad841; (1951)IMLJ446
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 10 - Order 33, Rule 3
AppellantParvathi Ammal
RespondentMeenakshi Ammal
Appellant AdvocateK.S. Ramabhadra Aiyar and ;K. Raja, Advs.
Respondent AdvocateK.E. Rajagopalachariar, Adv.
DispositionPetition allowed
Cases ReferredNeeli Khandi v. Kunhayisa
Excerpt:
civil - in forma pauperis - order 33 rule 3 of code of civil procedure, 1908 - plaint returned due to lack of pecuniary jurisdiction with permission to file in proper court - plaint amended conferring pecuniary jurisdiction on court and represented to same court by advocate of plaintiff - representation of plaint cannot be considered as continuation of earlier suit - application to sue as in forma pauperis filed in subsequent suit cannot be allowed as plaint not filed by plaintiff himself as required under order 33 rule 3. - .....the file of that ct. the deft. is the petnr., & the pltf., the resp. in this civil revn. petn. the resp. filed an appln. o. p. no. 58 of 1947, under order 33 rr. 1 & 2, civil p. c. 'in forma pauperis' in the ct. of the subordinate judge of tirunelveli clanging to recover possession of some landed property with mesne profits, & also claiming an enhanced maintenance for herself, besides a sum of rs. 975 for expenses of religious observances & rs. 300 the value of certain silver vessels belonging to her. the resp. is the brother's widow of the petnr. there were bequests in favour of both the parties under a will of the father-in-law of the resp. during the course of the enquiry into the pauperism of the resp., she was put in possession of the landed property claimed by her, & thereafter the.....
Judgment:

Viswanatha Sastri, J.

1. This is an appln. to revise the order of the learned Subordinate Judge of Tiruneiveli in I. A. No. 11 of 1949 in O. S. No. 70 of 1948, a suit instituted 'in forma pauperis' on the file of that Ct. The deft. is the petnr., & the pltf., the resp. in this civil revn. petn. The resp. filed an appln. O. P. No. 58 of 1947, under Order 33 Rr. 1 & 2, Civil P. C. 'In forma pauperis' in the Ct. of the Subordinate Judge of Tirunelveli clanging to recover possession of some landed property with mesne profits, & also claiming an enhanced maintenance for herself, besides a sum of Rs. 975 for expenses of religious observances & Rs. 300 the value of certain silver vessels belonging to her. The resp. is the brother's widow of the petnr. There were bequests in favour of both the parties under a Will of the father-in-law of the resp. During the course of the enquiry into the pauperism of the resp., she was put in possession of the landed property claimed by her, & thereafter the suit was regd. as O. S. No. 41 of 1948, after contest regarding the pauperism of the resp. Issue No. 5 framed in the suit was, 'Whether the suit was within the pecuniary jurisdiction of the CL of the Subordinate Judge of Trinelveli'. This issue was taken up as a preliminary issue, & theCt. held that the value of the suit was below Rs. 3000 & therefore returned the plaint for presentation to the Ct. of the District Munsif of Tirunelveli. There was an appeal by the resp. to the District Ct. Tirunelveli in C. M. A. No. 22 of 1948, but the District Ct. confirmed the order of the Subordinate Judge.

2. Thereafter the resp's advocate who had originally appeared in O. S. No. 41 of 1943, re-presented the plaint which had been returned by the Ct. of the Subordinate Judge, after amending it by the inclusion of additional claims & prayers for additional reliefs which resulted in the valuation of the suit being fixed at the sum of Rs. 6285. The plaint, as amended & enlarged, was re-presented to the Sub Ct. itself. The learned Subordinate Judge made an endorsement on the plaint dated 10-8-1948 to the effect, 'file at party's risk'. The re-presented plaint was numbered as O. S. No. 70 of 1948 on the file of the Ct. of the Subordinate Judge, Tiruneveli. The petnr. filed a written statement on 5-10-1948, wherein she pleaded, 'inter aila', that the suit had not been properly instituted. On 6-1-1949 the resp. filed I. A. No. 11 of 1949, purporting to be under O. 33, Rr. 1 & 8 & Section 151, Civil P. C. praying that the Ct. should accord permission to her to institute the suit, O. S. No. 70 of 1943, 'in forma pauperis'. This appln. was ordered by the learned Subordinate Judge & the permission sought for was granted.

3. The only question that was argued in I. A. No. 11 of 1949 in the Ct. below was, whether the plaint, which was numbered as O. S. No. 70 of 1948, should have been presented by the resp. in person, or whether the advocate, who had already appeared for her in O. S. No. 41 of 1948, was competent to re-present the plaint, which was eventually numbered as O. S. No. 70 of 1948. Order 33, Rule 2, Civil P. C. requires that every appln. for permission to sue as a pauper should contain the particulars required in regard to plaints in suits. Order 33, Rule 3 requires that the appln. shall be presented to the Ct. by the appct. in person unless he is exempted from appearance in Ct. These provisions are mandatory. The plaint, which was presented to the Ct. of the Subordinate Judge of Tirunelveli, & which was numbered ss O. S. No. 70 of 1948, contained many additions to, & alterations of, the plaint as originally filed in that Ct., which was returned to be presented to the Ct. of the District Munsif. There was a claim for additional maintenance & for the recovery of the value of jewels deposited with the father of the petnr. The value of the reliefs sought in the amended plaint was nearly twice the value of the claim as originally laid. The contention on behalf of the resp. is that she was entitled after return of the plaint, to make such alterations & amendments in the plaint as she thought fit, to bring the suit within the pecuniary jurisdiction of the Subordinate Judge's Ct. & re-present the plaint in that Ct. without the necessity of a personal presentation in accordance with Order 33, Rule 3, Civil P. C. This is an untenable contention. The plaint as originally presented had been returned by the Ct. of the Subordinate Judge, for presentation to the Dist. Munsif's Ct., as the suit was within the pecuniary jurisdiction of the latter Ct., & had to be filed there under Section 15, Civil P. C. After the plaint was so returned, the suit ceased to be pending in the Ct. of the Subordinate Judge. The plaint, as subsequently amended after the return, included other reliefs not originally claimed but whose value brought the suit within the jurisdiction of the Ct. of the Subordinate Judge. This was in substance a fresh plaint, though the old plaint had been amended in many respects & presented to the same Ct., which had previouslyreturned the plaint as unamended. I am unable to accept the contention of the resp. that the same old suit in the Ct. of the Subordinate Judge, which was numbered as O. S. No. 41 of 1948, was again given a fresh number O. S. No. 70 of 1948, & therefore there was no need for any fresh presentation of the plaint by the resp., as required by Order 33, Rule 3, Civil P. C. It cannot be maintained that the additional reliefs sought in the amended plaint must be deemed to have been sought when the plaint was originally filed & that the amendments introduced by the resp. herself without any order or direction of the Ct. relate back to the date of the filing of the plaint in the first instance. By professing to re-present the old plaint, with new claims & reliefs added 'suo motu' so as to bring the suit within the jurisdiction of the Sub Ct., the resp. cannot claim that it is a continuation of the 'old suit', O. S. No. 41 of 1948. That suit had come to an end when the plaint was returned under Order 7, Rule 10, Civil P. C. by the Subordinate Judge, & that order was upheld on appeal. The same plaint could not therefore again be represented to the Ct. of the Subordinate Judge. In fact, the plaint as re-presented was substantially different both with reference to the reliefs sought & the pecuniary values of those reliefs.

4. I therefore proceed on the basis that the plaint as amended was a new plaint & should have been presented to the Ct. of the Subordinate Judge by the pltf. herself in person, in conformity with the provisions of the Order 33, Rule 3, Civil P. C. The learned Subordinate Judge, instead of insisting upon compliance with the provision of this rule, numbered the amended plaint as O. S. No. 70 of 1948. When the deft. filed a written statement objecting to the procedure adopted by the learned Subordinate Judge & raising a plea, that the suit had not been validly instituted, the pltf. here resp., filed I. A. No. 11 of 1949 through her advocate asking for leave to sue 'in forma pauperis', treating the plaint in O. S. No. 70 of 1948, already on the file of the Ct., as the petn. for leave to sue in forma pauperis'. The question is, whether this was a sufficient compliance with the law. The amended plaint which was represented to the Sub Court, & registered as a suit, O. S. No. 70 of 1948, could not thereafter be taken back by the pltf. so long as the suit was pending. Even assuming that it can be formally handed over to the pltf. & taken back along with I. A. No. 11 of 1949, I consider it was a needless formality, having regard to the decisions of this Ct, in 'Subbarao v. Venkataratnam', 53 Mad 43 : AIR 1929 Mad 828 ; 'Bava Sahib v. Abdul Jhani', 64 M L J 728 : AIR 1933 Mad 498 & 'Neeli Khandi v. Kunhayisa : AIR1936Mad158 . If the pltf. had presented in person I. A. No. 11 of 1949 for leave to sue 'in forma pauperis', & the plaint in respect of which leave was sought, was already on the file of the Ct. she could be considered as having presented the plaint in person on the date when I. A. No. 11 of 1949 was filed by her in person in Ct. Unfortunately, she did not present I. A. No. 11 of 1949 in person though the verified petn. was signed by her & she declared the truth of its contents. In these circumstances, it is not possible to uphold the order of the Ct. below.

5. I therefore set aside the order of the learned Subordinate Judge. The civil reyn. petn. is allowed but in the circumstances of this case, there will be no order as to costs either here or in the Ct. below.


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