1. The plaintiff-opposite party in this rule instituted a suit for partition on 3rd September 1930, in the Second Court of the Subordinate Judge, Sylhet. The court-fee paid on the plaint in the suit was Rs. 10 only. On the objection of the defendants, the petitioners in this Court, on the question of court-fee payable on the plaint as filed in Court, based on the fact that the plaintiff was out of possession of the properties sought to be partitioned, it was held that the plaintiff was to pay ad valorem court-fees on her plaint. Time was granted to the plaintiff for putting in deficit court-fees; and on the last date fixed for payment of court-fees, the 27th July 1931, an application was made by the plaintiff to allow her to proceed with the suit as a pauper. In the application made on 27th July 1930, the plaintiff prayed for the amendment of the plaint as presented in Court, in view of the Subordinate Judge's decision that she was not in possession of the share of the property claimed by her in the suit for partition. The application, to continue the suit as a pauper was eventually granted on 23rd January 1932, by the Subordinate Judge after the necessary inquiries into the pauperism of the plaintiff had been made, as required by law. The concluding portion of the order passed by the Subordinate Judge on that date was this:
The petitioner is, accordingly, declared a pauper, for the purpose of the suit, and she is permitted to continue her Suit No. 127 of 1930 as such. Her prayer for amendment, along with the petition for pauperism was really premature, and it shall be considered in its due course, as the suit proceeds.
2. The defendants in the suit applied to this Court for setting aside the aforesaid order, made in Pauper Case No. 2 of 1931. The grounds for setting aside the order as mentioned in the application to this Court, on which this rule was granted, were directed against the Subordinate Judge's entertaining the plaintiff's application for continuing the suit as a pauper, and against the merits of the case, so far as the decision of the Subordinate Judge, on the fact of the plaintiff's pauperism was concerned. So far as the Court's power to allow a case to be continued as a pauper suit, after coming to a decision that the plaintiff was actually a pauper, is concerned, it appears to be amply supported by authority of decisions, so far as this Court is concerned: see the cases of Nirmal Chandra v. Doyal Nath (1876) 2 Cal 130 and Thompson v. Calcutta Tramways Co. (1893) 20 Cal 319. We can find no reason to differ from the view taken by this Court, based upon the principle that the power to allow a case to be continued as a pauper suit is included in the power given to the Court to allow a suit in forma pauperis to be instituted.
3. The order of the learned Subordinate Judge, as it stands, cannot, in our judgment, be successfully challenged, as one made without jurisdiction, or as one not passed in accordance with law. It has however been contended before us on the authority of the decision of this Court in the case of Mrs. Selima Sheehan v. Hafer Mohammad Fateh Nashib : AIR1932Cal685 , that where the plaintiff had under-valued the suit, had not paid proper court-fees, after taking adjournments for the purpose of putting in deficit court-fees, but had applied on the last date for payment of such fees, for leave to continue the suit in forma pauperis, the only course left open to the Court was to reject the plaint, under Order 7, Rule 11, Civil P.C. The contention thus advanced altogether overlooks the order against which this rule is directed. The order relates to pauperism of the plaintiff, and does not even relate to the question of amendment of the plaint as prayed for by the plaintiff in the suit. The plaint as presented could not be rejected on any of the grounds mentioned in Order 7, Rule 11 and it was only after the plaint had been amended with a view to a prayer for recovery of possession by the plaintiff, that payment of deficit court-fees as directed by the Court, could arise. No question of rejection of the plaint as filed by the plaintiff could arise on 23rd January 1932. The order passed on that date specifically mentioned that the prayer for amendment made in the petition for paupersim was premature, and was to be considered in due course during the progress of the suit. The decision of this Court in Mrs. Selima Sheehan's case : AIR1932Cal685 , to which reference has been made above, and upon which great reliance has been placed on behalf of the petitioners cannot be of assistance to them, on the facts and circumstances of the case before us. There was no occasion for rejection of the plaint in this case at any stage of the proceedings before the Court below; and the learned Subordinate Judge would on the facts of this case, have acted illegally and entirely without jurisdiction if he had on 23rd January 1932, rejected the plaint as presented in the Court by the plaintiff, on the ground of non-payment of deficit court-fees. The order made by the learned Subordinate Judge on 23rd January 1932, appears to us to be a valid order under the law, and the ends of justice in the case would, in our judgment, be frustrated and justice denied to the plaintiff, if that order was to be set aside and the Court below directed to reject the plaint on the ground of non-payment of deficit court-fees. In the result the rule is discharged with costs. We assess the hearing-fee in this rule at two gold mohurs.
M.C. Ghose, J.
4. I agree.