A co-plaintiff who is not a pauper cannot take advantage of the exemption from court fees granted to a pauper co-plaintiff under Order 33, Rule 8 of the Civil Procedure Code, 1908.

( 1 ) THIS is an application under Section 115, Civil P. C. and Article 227 of the Constitution of India and is directed against an order No. 23 dated 30th May 1953 passed by Sri H. C. Ghose, learned Subordinate Judge, 1st Court, Hooghly.

( 2 ) PLAINTIFF No. 1 Mahadeb Ghose, opposite party No. 11 in this Rule, and plaintiff No. 2, Lakhi Kanta Ghose, the petitioner in this Rule, filed a joint application for permission to sue as paupers. Along with the application they filed a copy of the proposed plaint alleging that the plaintiffs as reversioners were entitled to possession of the disputed property on the death of Benodini Dasi on the 28th of Jaistha, 1359 B. S. The plaintiffs prayed for declaration of their title and for recovery of possession, the claim being laid at Rs. 5750/ -.

( 3 ) THE Court thereupon made an enquiry into the pauperism of the two plaintiffs Mahadeb and Lakhi Kanta. By an order dated 19th March, 1953, the learned Subordinate Judge came to the conclusion that plaintiff No. 1 Mahadeb was a pauper but that plaintiff No. 2, Lakhi Kanta, was not a pauper. On 3lst March, 1953, Mahadeb's application was registered as a suit. On 23rd May, 1953, an application was made by the contesting defendants, namely, opposite parties Nos. 1 to 11 praying for rejection of the plaint as the court-fees payable on the plaint had not been paid by Lakhi Kanta. On 28th May, 1953, Lakhi Kanta filed an application for amendment of the plaint to effect that plaintiff No. 1 Mahadeb and plaintiff No. 2 Lakhi Kanta were equally interested in the disputed property and that the share of each of the two plaintiffs was -/8/- annas. Plaintiff No. 2 Lakhi Kanta expressed his willingness to pay half the court-fee payable on the plaint and to proceed with the suit. These two applications, one by the defendants and the other by Lakhi Kanta, were disposed of by the learned Subordinate Judge by Order No. 23 dated 30th May 1953. The learned Subordinate Judge dismissed the defendants' petition for rejection of the plaint but directed an amendment of the plaint to the effect that plaintiff No. 2 Lakhi Kanta had an -/8/- annas share in the disputed property. By the same order the learned Subordinate Judge directed Lakhi Kanta, plaintiff No. 2, to file a fresh suit for declaration of his -/8/-annas share in the disputed property on payment of costs of the application for leave to sue as a pauper and on payment of proper court-fees. It is against the last part of the order dated 30th May 1953, that Lakhi Kanta moved

this Court in revision and obtained the present Rule.

( 4 ) AT the very outset I may point out that the order of the learned Subordinate Judge dated 30th May 1953, is not quite consistent in so far as the last two portions thereof are concerned. Be that as it may, I have to consider the propriety of that portion of the order which is now in question in this case.

( 5 ) MR. Choudhury who has appeared in support of the petition has submitted that plaintiff No. 2 Lakhi Kanta is entitled to proceed with the suit on payment of an -/8/- annas share of the court-fees payable on the plaint.

( 6 ) IN a case where a person applies for permission to sue as a pauper and his application is dismissed under the provisions of Order 33, Rule 7 (3), Civil P. C. , on the ground that he is not a pauper, the law is well settled that the Court can permit the plaintiff to treat his application for permission to sue as a pauper as the plaint in the suit. There is, however, a divergence of judicial opinion on the further question whether the plaint should be treated as haying been presented on the date when the application for leave to sue as a pauper was filed or when the plaintiff, whose application to sue as a pauper was dismissed, puts in the costs incurred by the opposite party and pays the proper court-fee on the plaint. The latter view was taken by Edgley, J. in the case of -- 'biswanath Das v. Khejer Ali Molla', AIR 1939. Gal 394 (A ). Th