Petition rejected due to non-deposit of Court-fee.

(Order of Reference to the Bench by Kailasam, J., dated 25th August, 1971):-

The question that arises in this petition is whether an appeal or a revision lies against an order of the lower Court rejecting the petition to sue as a pauper and when the date for payment of Court-fee had expired.

2. In this case, the petitioner filed O.P. No. 198 of 1967 under Order 33, rule 1, Civil Procedure Code, to permit the petitioner to sue in forma pauperis. On the ground that on the date of the petition, the petitioner was possessed of some immovable property, which was fetching some rent (the facts are not admitted) the trial Court rejected the petition and declined to give permission to sue as a pauper and granted time for payment of Court-fee till 30th April, 1969. The Court-fee was not paid on 30th April, 1969 and the petition was rejected.

3. The learned Counsel for the respondents took up a preliminary objection that only an appeal lies and that the revision petition was incompetent. Order 43, rule 1 (nn) provides that an appeal shall lie from an order under rule 5 or rule 7 of Order 33, rejecting an application for permission to sue as a pauper or on the ground specified in clause (d) or clause (d-1) of rule 5 as aforesaid. Clause (d) of rule 5 of Order 33, provides that the Court shall reject an application for permission to sue as a pauper where the allegations do not show a cause of action and Clause (d-1), provides that the Court shall reject an application for permission to sue as a pauper where the suit appears to be barred by any law. These were not the two grounds on which the pauper petition was rejected and, therefore, Order 43,. rule 1 (nn), is not applicable. But the objection of the learned Counsel for the respondents is that while rejecting the pauper petition, time was granted till 30th April, 1969 and as the Court-fee was not paid before that date and the petition had been rejected, it must be deemed that the plaint was rejected and only an appeal lies against the rejection of the plaint. Order 33, is the chapter relating to suits filed by paupers. Order 33, rule 2, Civil Procedure Code, specifies the contents of an application to sue as pauper. It provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits. Order 33, rule 7, Civil Procedure Code, prescribes the procedure at hearing of a pauper petition and rule 8, provides that where the application is granted, it should be numbered and registered, and shall be deemed the plaint in the suit. Reading rules 7 and 8, an application under rule 2, is numbered and registered and it shall be deemed to be a plaint when the application is granted. Till the application is granted, the same is not deemed to be a plaint. The question is, what is the position when an application is dismissed granting time for payment of Court-fee. Under rule 8, the application is not deemed to be a plaint and the only thing that is rejected is the application as the order to pay Court-fee is not complied with. In my view, it cannot be said that the plaint is rejected, for the numbering of the plaint and its rejection comes only after the application to sue as pauper is allowed or when the Court-fee is paid.

4. Reliance was placed by the respondents on the decision of the Full Bench of this Court in Salyanarayanacharlu v. Ramalingam1 . In that decision, the Full Bench held that where an order directing payment of additional Court-fee in a suit is not complied with and it is followed by an order rejecting the plaint, a revision against the latter order would not be maintainable and the proper remedy is only by way of an appeal against the decree. These observations were made in a suit filed for a declaration that the plaintiff was the hereditary archaka of a temple. The suit had been grossly undervalued and the Court directed that the deficit Court-fee should be paid within two days. It was not complied with and the pla