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IN THE HIGH COURT OF MADRAS
King, J.
Uthuman Pillai Tharagan and Ors.
Versus
T. Muhammad Usaf Tharaganar and Ors.
Decided On : 24.10.1938
Civil Procedure Code - Interpretation of Order 33, Rule 15 and Section 149 - [O.S. No. 58 of 1931 - Civil Procedure Code, Order 33, Rule 15, Section 149] - The court analyzed the interpretation of Order 33, Rule 15 and Section 149 of the Civil Procedure Code. It held that the suit was not properly instituted under Order 33, Rule 15 when court-fee was paid by the plaintiffs on 30th September, 1931. However, it also found that a suit in which the costs have been paid must be treated as one instituted on the day on which the costs were paid, based on the ruling of Ramakrishna Nadar v. Ponnaya Thirumalai Vandaya Thevar AIR1936Mad24. The court remanded the suit for trial on the other issues and dismissed the appeal with the modification as to the date on which the suit is to be deemed to have been instituted. No order for costs in this appeal or in the lower appellate Court was given, and costs of the suit will abide the result.
Fact of the Case:
The plaintiffs applied for permission to sue the defendants in forma pauperis, which was refused, and they were directed to pay the defendant's costs. The plaintiffs paid the costs and the petition was registered as a plaint. The defendant later applied for permission to raise a fresh ground of defence, arguing that the suit was not maintainable as the costs had not been paid.
Finding of the Court:
The court found that the suit was not properly instituted under Order 33, Rule 15 when court-fee was paid by the plaintiffs on 30th September, 1931. However, it also found that a suit in which the costs have been paid must be treated as one instituted on the day on which the costs were paid, based on the ruling of Ramakrishna Nadar v. Ponnaya Thirumalai Vandaya Thevar AIR1936Mad24. The court remanded the suit for trial on the other issues and dismissed the appeal with the modification as to the date on which the suit is to be deemed to have been instituted.
Issues: The main issue was the interpretation of Order 33, Rule 15 and Section 149 of the Civil Procedure Code, and whether the suit was properly instituted when court-fee was paid by the plaintiffs.
Ratio Decidendi: The court held that the suit was not properly instituted under Order 33, Rule 15 when court-fee was paid by the plaintiffs on 30th September, 1931. However, it also found that a suit in which the costs have been paid must be treated as one instituted on the day on which the costs were paid, based on the ruling of Ramakrishna Nadar v. Ponnaya Thirumalai Vandaya Thevar AIR1936Mad24.
Final Decision: The court remanded the suit for trial on the other issues and dismissed the appeal with the modification as to the date on which the suit is to be deemed to have been instituted. No order for costs in this appeal or in the lower appellate Court was given, and costs of the suit will abide the result.
King, J.
1. The plaintiffs in O.S. No. 58 of 1931 on the file of the Subordinate Judge of Tinnevelly began legal proceedings against the defendants by applying on 30thJuly, 1930, for permission to sue them-in forma pauperis. That permission was refused on 21st August, 1931, by an order which also directed the plaintiffs to pay the defendant 1 costs. As soon as this1 order was pronounced plaintiffs asked for time to pay court-fee. The matter was adjourned to 30th September, 1931. On that day court-fee was paid, and the petition registered as a plaint. In April, 1933, defendant 1, who had said nothing about his costs in his original written statement applied for permission to raise a fresh ground of defence, namely, that as plaintiffs had not paid his costs they were debarred by the provisions of Order 33, Rule 15 from maintaining the suit. This permission was granted, and a new issue framed. On 30th August, 1933, plaintiffs paid the costs into Court. The learned Additional Subordinate Judge then proceeded to try the new issue and held that the suit was not maintainable. On appeal the learned District Judge of Tinnevelly reversed the decision on this issue and remanded the suit for trial on the other issues. Against that order of remand the present Civil Miscellaneous Appeal has been filed.
2. The decision of the appeal depends mainly upon the interpretation of two provisions in Civil Procedure Code.
3. The first is Order 33, Rule 15, which runs as follows:
An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the Government and by the opposite party opposing his application for leave to sue as a pauper.
and the second is Section 149 which runs as follows:
Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fee has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
4. The argument of the earned Counsel for the respondents is that Order 33, Rule 15 applies only to the filing of a fresh plaint, and not to the conversion into a plaint of the particulars which Order 33, Rule 2 prescribes must accompany the application for permission to sue as a pauper. For the purposes of Section 149 it is further argued, such particulars can be regarded as already constituting a plaint upon which the whole court-fee has not been paid, and in the present case the Court has rightfully under the powers which Section 149 confers upon it permitted the plaintiffs on 30th September, 1931, to pay the whole of the court-fee. The argument for the appellants, on the other hand, is that the action of the plaintiffs on 30th September, 1931, in paying the court-fee and utilising as their plaint the particulars which they had already given in their petition amounts to instituting a suit in the ordinary manner within the meaning of those words in Order 33, Rule 15 that no plaint was pending before the learned Subordinate Judge on 30th September, 1931, or even on 21st August itself when the adjournment was granted as he had already refused permission to sue in forma pauperis; that Section 14,9 cannot therefore apply; and that the provisions of Order 33, Rule 15 alone follow, and inevitably follow, the order under Order 33, Rule 7 dismissing plaintiffs application.
5. For the position that the provisions of Section 149 apply to the present facts the learned Advocate for the respondents relies upon three rulings Mrinalini Debi v. Tinkau
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