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Venkatammal and anr. Vs. Muthukrishna Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1957)2MLJ623
AppellantVenkatammal and anr.
RespondentMuthukrishna Naidu and ors.
Cases ReferredSatyanarayanacharlu v. Ramalingam
Excerpt:
- .....the plaintiff to sue in forma pauperis.2. on this the office has raised an objection as to how a civil revision petition is maintainable against an order rejecting the original petition for non-payment of court-fee.3. on this point there are two decisions of our high court, namely, one by pan-chapakesa ayyar, j., in bommi setti ramayamma, in re (1954) 1 m.l.j. 544 , and the other by basheer ahmed sayeed, j., in munian v. kesava pandithan (1955) 1 m.l.j. 452.4. in bommi setti ramayamma, in re (1954) 1 m.l.j. 544 , panchapakesa ayyar, j., held following the decision in satyanarayanacharyulu v. ramalingam : air1952mad86 to which he was a party that where after a petition for leave to sue as a pauper is rejected the petitioner waits till the time granted for paying the additional court-fee.....
Judgment:
ORDER

Ramaswami, J.

1. This S.R. is sought to be presented as a Civil Revision Petition under Section 115 of the Civil Procedure Code against an order dismissing O.P. No. 583 of 1955 on the file of the Sub-Court, Coimbatore, for non-payment of Court-fee within the time allowed after refusing leave to the plaintiff to sue in forma pauperis.

2. On this the office has raised an objection as to how a Civil Revision Petition is maintainable against an order rejecting the Original Petition for non-payment of Court-fee.

3. On this point there are two decisions of our High Court, namely, one by Pan-chapakesa Ayyar, J., in Bommi Setti Ramayamma, In re (1954) 1 M.L.J. 544 , and the other by Basheer Ahmed Sayeed, J., in Munian v. Kesava Pandithan (1955) 1 M.L.J. 452.

4. In Bommi Setti Ramayamma, In re (1954) 1 M.L.J. 544 , Panchapakesa Ayyar, J., held following the decision in Satyanarayanacharyulu v. Ramalingam : AIR1952Mad86 to which he was a party that where after a petition for leave to sue as a pauper is rejected the petitioner waits till the time granted for paying the additional Court-fee expires and the plaint is consequently rejected he cannot afterwards file a reveision petition against the order rejecting his petition for leave to sue as a pauper as his remedy then is only an appeal against the decree rejecting the plaint. In that case the petitioner filed O.P. No. 57 of 1951 on the file of the Sub-Court, Bapatla, under Order 33, Rule 1, Civil Procedure Code, for leave to sue as pauper. Her petition was rejected and she was directed to pay the Court-fee due on the plaint and ten days' time was fixed for it. She failed to pay the Court-fee within the time allowed and the pauper plaint was rejected. As against the order refusing leave to sue as a pauper she filed a Civil Revision Petition and this was filed after the order rejecting the pauper plaint was passed. It was held that a Civil Revision Petition would not lie and that the remedy was only by way of an appeal under Section 96 of the Civil Procedure Code.

5. In a subsequent decision by Basheer Ahmed Sayeed, J., in Munian v. Kesava Pandithan (1954) 1 M.L.J. 544 , it was held that a revision would be maintainable as according to the learned Judge it cannot be said that what was rejected is a plaint or a suit and that until the application for leave to sue as pauper is granted there is no plaint before the Court to be numbered, registered or rejected. The learned Judge also took the view that if a condition is imposed for payment of Court-fee within a time prescribed on leave being refused, it cannot be said that the original petition has become converted into a plaint or a suit in order to attract the provisions of Order 7, Rule 2, Civil Procedure Code.

6. The facts of the present case are similar to those in Bommi Setti Ramayamma, In re (1954) 1 M.L.J. 544, The petitioner filed an O.P. on the file of the Sub-Court, Coimbatore, for filing a suit in the pauper form. The learned Subordinate Judge held that the petitioner was not entitled to file the suit in the pauper form and he directed payment of Court-fee for which he granted time. Court-fee was not paid within the time allowed and therefore the plaint was rejected. It is in these circumstances that the present civil revision is sought to be filed. In the case dealt with by Panchapakesa Ayyar, J., the petitioner filed an original petition for leave to sue in the pauper form. The petition was rejected and she was directed to pay Court-fee due on the plaint within ten days' time. Court-fee was not paid within the time allowed and, therefore, the plaint was rejected. There was a Civil Revision Petition filed against the order refusing leave to sue as a pauper. It is in these circumstances that my learned brother Panchapakesa Ayyar, J., following the decision in Satyanarayanacharlu v. Ramalingam : AIR1952Mad86 , held that in such cases the remedy is only an appeal against the decree rejecting the plaint.

7. Therefore, the short point for consideration in the present case is whether a civil revision petition could be filed or only an appeal has to be filed against the order of the Subordinate Judge rejecting the plaint. With great respect to Basheer Ahmed Sayeed, J., I do not agree with the reasoning which prompted him to hold that a revision petition lies in such cases. On the other hand, I respectfully agree with Panchapakesa Ayyar, J., who held following a Full Bench decision in Satyana-rayanacharyulu v. Ramalingam : AIR1952Mad86 , that the remedy is by way of an appeal against the decree rejecting the plaint.

8. Therefore, this S.R. cannot be allowed to be filed as a Civil Revision Petition. But it will be open to the applicant to file an appeal if he is so advised.


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