Non-compliance with court-fee and costs requirements can lead to the bar of a suit by limitation.

Krishnaswami Ayyangar, J.

1. This appeal arises out of a suit instituted by the appellant to recover the suit properties on the ground that he is the reversioner to the estate of one Siva Rao, to whom they originally belonged. Siva Rao died in 1879 and was succeeded by his adoptive mother Syamalamba who died on 8th July, 1927. The suit was instituted on 26th June, 1939. There were six defendants in the suit and they raised various defences which are all reflected in the issues framed by the District Judge. Out of these, the first part of issue 4 and the whole of issue 7 were taken up for consideration as preliminary issues. The learned District Judge found these issues in favour of the defendants and accordingly dismissed the suit.

2. In order to appreciate the contentions of the appellant, it is necessary to state a few facts. On the 7th March, 1933, the appellant filed a petition under Order 33, Rules 2 and 3 of the Code of Civil Procedure for leave to institute a suit for the same reliefs as those for which the present suit has been instituted. This petition was ultimately dismissed on 3rd November, 1933, the petitioner being directed, to pay Rs. 17 as costs to the contesting respondents who are defendants I and 2 here and Re. 1 for the costs of the Government. These costs were not paid until some time after the institution of the present Suit in which the plaint was filed on 26th June, 1939. The plaint bore a court-fee of annas twelve only although the proper court-fee was Rs. 337-7-0. The conduct of the plaintiff in paying a court-fee of annas twelve only can scarcely be regarded as bona fide, as it is impossible to imagine that he could have honestly thought that that was the court-fee. On the 27th June, 1939, the plaint was returned by the Court with a direction that the deficit court-fee should be paid and time was granted for this purpose till 10th July, 1939. On that day the plaint was re-presented but without payment of the deficit court-fee. The plaintiff again asked for time and the Court granted time till 26th July, 1939. On that date the plaint was re-presented with a court-fee of Rs. 336-7-0 which still left a deficit of annas four which was made good only on the 29th July, 1939. On the 1st August, 1939, the suit was taken on file and the plaint was numbered as O.S. No. 35 of 1939.

3. The two preliminary issues to which we referred were the following:

Issue 4 : Whether the suit is barred by reason of non-payment of the court-fee in time?

This is the first part of issue and the second part was Is the suit in time? The seventh issue was:

Whether the suit is not maintainable under Order 33, Rule 15 of the Code of Civil Procedure?

It may be mentioned that under the provisions of Order 33, Rule 15, it is obligatory on the plaintiff that he should first pay the costs in the pauper petition incurred by the Provincial Government and by the opposite party. The language of the rule leaves ho room for doubt that the right of suit recognised by the rule is made expressly subject to the condition that he should pay the said costs before the institution of the suit. These costs were, however, only paid on 24th July, 1939, long after the presentation of the plaint on insufficient stamp paper, but before the deficiency was made good on 29th July, 1939. If the date when the plaint was filed, namely, 26th June, 1939, is regarded as the date on which the suit was instituted, it is plain that the plaintiff has not satisfied the condition laid down in Order 33, Rule 15. The argument advanced on behalf of the appellant is this : that the plaint in the present suit should be deemed to have been instituted not on the date on which the plaint was filed but only on the date when the deficit court-fee was made good on 29th July, 1939. This is a contention which, in our opinion, leads to an absurd result. It can scarcely be doubted that if a plaintiff institutes a suit oh payment of the full court-fee but without having paid the costs