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Mahammad Fateh Nasib Vs. Saradindu Mukherjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal221
AppellantMahammad Fateh Nasib
RespondentSaradindu Mukherjee
Cases ReferredBava Sahib Miyan v. Abdul Ghani
Excerpt:
- 1. on 8th january 1930 the plaintiff applied for permission to institute a suit in forma pauperis for recovery of possession of a certain property with mesne profits on a declaration that the same was wakf property and that he was the mutawalli of the wakf. he valued the suit at rs. 5,100. the application was entertained and notices were issued on the defendant and the government pleader. on 8th march 1930 the defendant filed an objection in which amongst other grounds it was alleged that the market value of the property was not less than rs. 1,25,000. on 21st june 1930 the plaintiff filed the requisite court-fee on his plaint as framed, and on that the suit was registered as an ordinary suit. on 17th september 1930 the defendant filed his written statement, and on 6th november 1930.....
Judgment:

1. On 8th January 1930 the plaintiff applied for permission to institute a suit in forma pauperis for recovery of possession of a certain property with mesne profits on a declaration that the same was wakf property and that he was the mutawalli of the wakf. He valued the suit at Rs. 5,100. The application was entertained and notices were issued on the defendant and the Government Pleader. On 8th March 1930 the defendant filed an objection in which amongst other grounds it was alleged that the market value of the property was not less than Rs. 1,25,000. On 21st June 1930 the plaintiff filed the requisite court-fee on his plaint as framed, and on that the suit was registered as an ordinary suit. On 17th September 1930 the defendant filed his written statement, and on 6th November 1930 issues were framed, one of the issues being on the question of valuation of the suit. This issue was taken up as a preliminary issue; and evidence thereon being adduced the Subordinate Judge, on 31st March 1932, assessed the market value at Rs. 75,000 and directed the plaintiff to put in the deficit court-fees within one month. This time was extended twice, by a month on each occasion, on the plaintiff's application, once on 30th April and again on 30th May 1932. On 30th June 1932 the plaintiff applied for furtber time and on that the Subordinate Judge ordered the petition to be put up for orders on 6th July 1932, on which date the plaintiff applied for permission to continue the suit as a pauper filing with the application a copy of the plaint he had already filed and valuing it at the figure which the Court had found as the value of the property. On 13th July 1932 the Subordinate Judge rejected the application of 30th June and 6th July 1932 and later on on 16th August 1932 passed two orders, one after the other, which ran thus:

No. 58. Plaintiff's application for permitting him to continue the suit in forma pauperis cannot be allowed in view of the decision of the Honourable High Court reported in Salima Sheehan v. Hafez Mahomed 1932 Cal 685. This application is rejected.

No. 59. Deficit court-fees not paid. The plaint is rejected. The plaintiff has then preferred this appeal, as from an order dated 16th August 1932, in Title Suit No. 106 of 1930, that being the number given to the suit when it was registered. Obviously it was the second order of August 1932 which has been appealed from, the validity of the first order of that date being intended to be also challenged in the appeal.

2. It is apparent that as the deficit courtfees were not paid the second order was justified by the provisions of Order 7, Rule 11 (c) of the Code. And the only question is whether the interposition of the application which the plaintiff made on 6th July 1932 for permission to continue the suit as a pauper makes any difference. It is also clear that if that application was rightly rejected and so was out of the way, the second order was a perfectly legitimate order passed in conformity with the provision of the Code referred to above, after the plaintiff had time not once but three times, to put in the deficit court-fees. The correctness of the first order then is the only point for our consideration. For the first order no other reason has been given than that in view of the decision in Salima Sheehan v. Hafez Mahomed 1932 Cal 685 the application to continue the suit in forma pauperis cannot be allowed. It seems fairly clear that it was on no question of merits that the learned Judge proceeded, but that he took it that having regard to the decision that he relied on, it was not open to him to allow the plaintiff to continue the suit in forma pauperis. The question to be considered is thus a pure question of law. Under Act 8 of 1859 it was held by Pontifex, J., in Nirmal Chandra v. Dyal Nath (1876) 2 Cal 130 that the power to allow a suit to be continued as a pauper suit was included in the power given to the Court, to allow a suit in forma pauperis to be instituted. Under Act 14 of 1882, following the case aforesaid, the same view was expressed in Revji Patel v. Sakharam (1884) 8 Bom 615 and Thompson v. Calcutta Tramway Co. (1893) 20 Cal 319. In the case of Salima Sheehan v. Hafez Mahomed 1932 Cal 685, Costello, J., appears to have doubted the correctness of the view taken in the cases aforesaid but observed:

It is unnecessary for the purpose of the present case that we should exprees a definite opinion as to whether we agree with the decision in Thompson v. Calcutta Tramway Co. (1893) 20 Cal 319.

3. Jack, J. who was a party to the decision in Salima Sheehan v. Hafez Mahomed 1932 Cal 685 was also a member of the Court in the later decision in Hafez Mohammad v. Aminuddin 1934 Cal 25, in which the view taken in Nirmal Chandra v. Dyal Nath (1876) 2 Cal 130, Thompson v. Calcutta Tramway Co. (1893) 20 Cal 319 and Revji Patel v. Sakharam (1884) 8 Bom 615 has been adopted. There is another decision of this Court, namely Surendra Chandra v. Showdamini Roy 1933 Cal 238 in which the same view has been taken; so also in Subba Rao v. Venkataratnam 1929 Mad 828. In our opinion, the correctness of this view which was obtained since 1877 need not be questioned. The Subordinate Judge therefore was in error if he was of opinion that because the suit had already been registered as an ordinary suit the application to continue it in forma pauperis could not be entertained. It has been contended on behalf of the defendant that even though the view aforementioned need not be doubted, yet in a case where in a suit commenced in the ordinary form circumstances may arise which bring the case within the provision contained in Order 7, Rule 11 (c) of the Code, and that on such circumstances arising, it would no longer be open to the Court to allow the suit to be continued in forma pauperis, but the Court must proceed to deal with the suit in accordance with that provision; that the case of Salima Sheehan v. Hafez Mahomed 1932 Cal 685 is an authority for that proposition; and that the Subordinate Judge has regarded it as such. It appears in Hafez Mohammad v. Aminuddin 1934 Cal 25 and Salima Sheehan v. Hafez Mahomed 1932 Cal 685 (supra) has been distinguished on such a ground. The question then arises, whether the case, though it must be taken to have been correctly decided on its own merits, can be treated as laying down any general principle or proposition of law of the nature contended for on behalf of the defendant. Order 7, Rule 11 (c) of the Code says 'within a time to be fixed by the Court.' It has not been and indeed cannot be urged in view of Section 148 of the Code that the time so granted cannot be enlarged from time to time. Nor can it be doubted that that section expressly empowers the Court to extend any time fixed by it even after the expiry of the period originally fixed.

4. In the present case the plaintiff's application for further time made on 30th June was pending on 6th July when he applied to continue the suit in forma pauperis. And in our opinion the Court not having up to that point of time made up its mind not to grant any further time, the provisions of Order 7, Rule 11 (c) cannot be said to have operated ipso facto. If within one of the periods allowed, or even beyond it, but before the plaint is rejected or before circumstances have arisen under which it is bound to be rejected, an application is made to continue the suit as a pauper, is it obligatory for the Court to reject the plaint and relegate the plaintiff to a fresh application or is the Court competent to entertain the application and shape its proceedings in such a manner as would conduce to convenience and saving of time and costs? There is nothing in the Code that we can see which will force us to adopt a construction such as the defendant seeks to put upon the procedure. In our judgment, the mandatory provision contained in Order 7, Rule 11 of the Code is intended for cases where no other complications intervene and that in a case of the present nature the Court has sufficient inherent power to depart from the normal procedure to suit the exigencies of the situation. There have been instances in which under similar circumstances, notwithstanding failure on the part of the plaintiff to put in deficit court-fees on the plaint within the time fixed and so attracting the operation of Order 7, Rule 11 (c) of the Code, application to continue the suit in forma pauperis has been ordered to be' entertained. One of such cases is the case of Surendra Chandra v. Showdamini Roy 1933 Cal 238 which though it purports only to distinguish the case of Salima Sheehan v. Hafez Mahomed 1932 Cal 685 and does not dissent from it, does in our opinion, do so on a ground which is too narrow. Another case that may be cited in this connexion is that of Bava Sahib Miyan v. Abdul Ghani 1933 Mad. 498. The only point of difference between the present case and the cases just cited is that in those cases the application to continue the suit in forma pauperis was made at a time when a period allowed by the Court had not expired. But on principle we do not see why that should make any difference, so long as it is clear that an application for further time was pending consideration, at the time when the application to continue the suit in forma pauperis was made, and so long as it is also clear that the Court could, if it so wished, grant further time, thus repelling the operation of Order 7, Rule 11 (c) of the Code. In our judgment the Subordinate Judge was in error in refusing to entertain the application. We accordingly allow the appeal and, setting aside the two orders referred to above, send the case back to the Court below with a direction that the application be entertained and dealt with on its merits. We decide no other point. Costs of this appeal will abide the result of the suit.


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