Court fee payable in an appeal against an order rejecting a petition for leave to sue in forma pauperis.

ORDER †- This S.R. purports to be filed as a Civil Miscellaneous Appeal against the order of the City Civil Court refusing leave to file a suit in forma pauperis on the ground that the appellant is possessed of means.

A preliminary point for determination is whether this is maintainable as a Civil Revision Petition or Civil Miscellaneous Appeal. It has been held by this Court recently that when an application to file a suit in the pauper form is rejected and time is given for the payment of Court-fee and then the Court-fee is not paid within the time prescribed, the remedy of the petitioner is not by way of a revision against the order rejecting the original petition for non-payment of Court-fee but by way of an appeal. The decisions bearing on this subject have been reviewed in my order in (S.R. No. 13074, dated 23rd July, 1957) Venkatammal v. Muthukrishna Naidu1,wherein I followed Bommi Setti Ramayamma, In re2 and Satyanarayana Charyulu v. Ramalingam3, and dissented from Muniyan v. Kesavan Pandithan4. That case was not allowed to be filed as a Civil Revision Petition and the party was directed to file an appeal if she was so advised.

This case cannot therefore be filed as a Civil Revision Petition. It can be filed only as a Civil Miscellaneous Appeal, which is what the petitioner has purported to do.

The next question that arises is as to the Court-fee chargeable under section 52 of the Court-fees Act, 1955. In regard to this there are three possible views:

The first view is that ad valorem, Court-fee is payable as in the suit on the value of the subject-matter of the suit. The argument for this view is neatly summed up in the judgment of Grille, J.C., in Ganapati v. Venkatesh5. This argument has not however been accepted in the Bench decision of this Court in Kallappa v. Kandaswami6. The previous decision of Schwabe, C.J., in S. R. No’. 1923 of 1923 set out in extenso at pages 423-426 of Satyamurthi Ayyar’s Court-Fees Act is followed in the above decision Kaliappa v. Kandaswami6, and the view of Pollock, A.J.C,. in the above Nagpur case has been preferred to that of Grille, J.C vide also Appa Rao v. Bhagubai7. Where the limitation permits, rejection of plaint does not preclude a subsequent suit on payment of Court-fee and it would be unreasonable in such cases to levy the same ad valorem fee on an appeal from the rejection of plaint. It would be impracticable and inexpedient to apply a different rule where a second suit would be barred by limitation because the question whether there is such a bar may then have to be decided for the purpose of Court-fee.

The second view is that the Court-fee is payable on the amount of Court-fee payable in the suit. Both the Madras and Nagpur decisions cited above related to cases where there was a dispute as to the amount of Court-fee and Court-fee was held payable on the difference between the Court-fee paid and that demanded. Even in such cases, it is possible that a second suit would be barred by limitation and the plaintiff may lose his remedy altogether if the order appealed against is allowed to stand. But such considerations have not weighed with their Lordships. There is no case relating to rejection of plaint consequent on refusal of leave to sue in forma pauperis. If the principle of the above decisions can be extended to this case an ad valorem fee on Rs. 1 ,658-25 nP. being the ad valorem fee on the amount of claim viz., Rs. 22,103 will have to be levied.

The third view is that the subject-matter of the appeal is only the right to seek his remedy on the scheme of deferred payment of Court-fee. Schwabe, C.J., in the Judgment cited above has observed thus:

“The question is whether this case has to be heard or not and I confess that I had considerable doubt whether it is not more correct to say that the real subject-matter is whether the case is to be heard or not,”

and remarked that if the subject-matter in dispute were not the difference between the two fees, it would be a subject-matt

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