The plaintiff should be allowed to apply to continue the suit in forma pauperis, and an inquiry should be made to determine if the plaintiff is a pauper unable to pay the additional stamp duty.

Kumaraswami Sastri, J.

1. In this case the plaintiff is the appellant. He filed the suit for partition and delivery to him of his share in the properties alleging that he is a member of an undivided family with defendants 1 to 6, that the immove-able properties in the plaint schedule are joint family properties and praying that the decree in Suit No. 24 of 1922 should be set aside as not binding on him. He paid a stamp duty of Rs. 250 valuing the suit as one by a coparcener to be in possession with the other coparceners. The suit was filed on the 17th April, 1923, written statements were filed and preliminary objection was taken as to the valuation of the suit and the Court-fee paid. Issue 12 is: "Are the valuation of the suit and the Court-fee paid not correct?" The Subordinate Judge in dealing with it disposed of the preliminary point and held that the valuation was not correct. He held that the plaintiff should not value the suit under Section 7, para. 4(b) and was not entitled to put his own valuation on the property. He held that, the amount payable was prescribed by Section 7, para. 5 of the Court Fees Act. When he held this the plaintiff put in an application to be permitted to continue the suit in forma pauperis on the ground that he was unable to pay the heavy stamp duty of Rs. 1,523 and odd which would be payable by him in addition to the fee already paid. He put in the usual application through his pleader to allow him to continue in forma pauperis. The Subordinate Judge dismissed the application on the short ground that it was not in the form prescribed by the Code and that it was not presented by the plaintiff in person and hence the appeal. The first question is, whether the Subordinate Judge was right in dismissing the application. It is now clear on the authorities that in a case like the present it is open to the plaintiff to apply to continue the suit in forma pauperis. We need only refer to Thompson v. The Calcutta Tramway Company (1893) I.L.R. 20 C. 319 and Revji Patil v. Sakharam (184) I.L.R. 8 B 615 Although there is no direct decision in the Madras Court on the point the learned Judges who decided Solayappa Chetty v. Lakshmanam Chetty (1919) 38 M.L.J. 146 expressed no dissent from the view that such an application would lie. If such an application lies, then the question is, whether the Subordinate Judge was right in holding that it should be in the form prescribed in Rule 2 of Order 33 and presented in person as required by Rule 3. It is difficult to see how these rules can apply to-a case like the present. Rule 2 contemplates that the application itself should be in the form of a plaint. It should contain all the particulars required as regards plaints in suits; there should be a schedule of any moveable and immoveable property belonging to the applicant and its estimated value and the application should be signed and verified in the manner prescribed for signing and verification of pleadings. Rule 3 says that the application should be presented by the applicant in person unless he is exempted from appearing in Court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application and may be examined in the same manner as the party. Rule 4 is that when the application is in proper form and duly presented to the Court it may, if it thinks fit, examine the applicant or the agent when the applicant is allowed to appear by agent regarding the merits of the claim and the property of the applicant. Rule 5 says that the application shall be rejected if it is not inter alia framed and presented in the manner prescribed by Rules 2 and 3. Then we come to Rule 8 which says that where the application is granted it shall be numbered and registered and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay any