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In Re: Devata Talipulamma Alias Mahalakshmamma by Her Husband and General Power-of-attorney Holder Devata Kamaraju. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1946Mad257; (1946)1MLJ103
AppellantIn Re: Devata Talipulamma Alias Mahalakshmamma by Her Husband and General Power-of-attorney Holder D
Cases ReferredKrishna Mohan Sinha v. Raghunandan Pandey I.L.R.
Excerpt:
- - there will be some force in this argument if the only provision for the purpose of deciding this point is order 33, rule 8. the scheme of the code clearly shows that order 33 was intended to relate only to proceedings in the court in which the suit was filed and that in respect of the proceedings subsequently instituted by way of appeal, there is another provision made as to how parties should conduct those proceedings as paupers......it is true that in order 33, rule 8, it is stated that where once a person had been permitted to file a suit as a pauper he shall not be liable to pay any court-fee other than the fees payable for service of processes in respect of any petition, appointment of a pleader or other proceeding connected with the suit. it is urged that the civil revision petition is a proceeding connected with the suit and that the words ' in the same court or in the same forum ' are not found in order 33, rule 8 and therefore even though the civil revision petition is filed in the high court he is entitled to file a petition without court-fees, because it is a proceeding connected with the suit. there will be some force in this argument if the only provision for the purpose of deciding this point is order.....
Judgment:
ORDER

Kuppuswami, Ayyar, J.

1. This is a petition by the petitioner in C.R.P. No. 1239 of 1945 on the file of this Court for directing a refund of the court-fees paid by him in the said civil revision petition. He had filed this revision against the order passed in O.S.No. 226 of 1943 on the file of the District Munsiff's Court, Peddapuram. His contention is that he was recognised as a pauper and therefore he is entitled to file the revision petition without paying the necessary court-fees. The petition was returned to him for paying necessary court-fees and he would not pay the same. The matter was posted before the Master and he passed the following order on the 22nd August, 1945:

The petitioner is called. He is absent. The appeal examiner's view is correct. Deficit court-fee will be paid in two weeks.

Under Section 5 of the Court-Fees Act the decision of the Taxing Officer is final but it is urged that it was only an ex parte order and therefore a nullity. But this is not a case in which the petitioner was not given notice. He was called and he was absent. Therefore the Taxing Officer had to pass an order in his absence.

2. My attention is drawn by the petitioner to certain observations of the Patna High Court in Krishna Mohan Sinha v. Raghunandan Pandey I.L.R. (1924)Pat. 336 to the effect that the decision of the Taxing Officer is not final where he has proceeded ex parte. That is on the question as to the value of the subject-matter of the suit and further it is also stated in that observation that the decision would not be final if it has proceeded ex parte and without giving an opportunity to the suit or to show by adducing evidence what the value of the subject-matter is. In this case the petitioner had been given notice but he was absent. In view of Section 5 of the Court-Fees Act, I have no jurisdiction now to go into the question as to whether the court-fee paid was payable or not.

3. Even on the merits I do not think I will be justified in ordering a refund. It is true that in Order 33, Rule 8, it is stated that where once a person had been permitted to file a suit as a pauper he shall not be liable to pay any court-fee other than the fees payable for service of processes in respect of any petition, appointment of a pleader or other proceeding connected with the suit. It is urged that the civil revision petition is a proceeding connected with the suit and that the words ' in the same Court or in the same forum ' are not found in Order 33, Rule 8 and therefore even though the civil revision petition is filed in the High Court he is entitled to file a petition without court-fees, because it is a proceeding connected with the suit. There will be some force in this argument if the only provision for the purpose of deciding this point is Order 33, Rule 8. The scheme of the Code clearly shows that Order 33 was intended to relate only to proceedings in the Court in which the suit was filed and that in respect of the proceedings subsequently instituted by way of appeal, there is another provision made as to how parties should conduct those proceedings as paupers. I do not hence think I will be justified in accepting the contentions of the petitioner that he is entitled to pay no court-fee on a petition filed for revision of the lower Court's order under Section 115 by reason of the provisions of Order 33, Rule 8. It is also significant that there is no provision separately made enabling parties to file applications without paying court-fees in the High Court except when proceedings are taken by way of appeal. In the result, the petition is dismissed.


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