1. Petitioners are respondents 9, 13 and 15 to 19 in a petition filed by two brothers for permission to sue them in forma pauperis. They seek to revise an order passed by the District Munsif of Bezwada who allowed a review petition, I.A No. 2522 of 1945, filed under O. 47, R. 1 of the CPC which resulted in the pauper petition after having been rejected on 23rd June 1945 and ultimately dismissed on 21st July 1940 for failing to pay the requisite court-fee, being registered as a suit on payment of the court-fee ultimately on 12th February 1946.
2. It is regrettable that neither learned advocate was instructed about the nature of the suit and in consequence they have no notion whatsoever as regards the contemplated plaint, the alignment of parties or the cause of action. On referring to the original plaint, I find that the plaintiffs are two brothers who recently attained majority. The suit they contemplate is one to set aside a sale-deed in-favour of defendant 8 of the year 1939 executed by their brothers who are defendants 1 and 2 and the husband of defendant 7 whose children were defendants 3 to 6. Defendant 8 subsequently sold item to defendants 9, 13 and 15 to 19 who are the present petitioners. The other members of the family of the petitioners in the pauper petition made no appearance giving clear indication that this suit is one of a familiar type.
3. I come now to the main point for consideration, namely, the maintainability of this review petition, I.A No. 2522 of 1945 under O. 47, R. 1 of the CPC. The record shows that the pauper petition was substantially, though not explicitly, rejected on 23rd June 1945 by a finding that the petitioners had ancestral property more than sufficient to cover the court-fee. The petition was posted for payment of court fee on 7th July 1945, time was extended till 14th July 1945 and finally the petition was dismissed on 21st July 1945. Then on 21st August 1945, this review petition was filed which sought in substance merely to extend the time given for payment of court fee. The District Munsif held that half the court-fee was payable on the review petition and directed that if the petitioners paid the proper court fee on the review petition and also the full court-fee payable on the plaint within a week, the review petition would be allowed. This court fee having been paid on 9th February 1946, the District Munsif allowed the review petition and the suit was registered on payment of these court fees.
4. The procedure adopted by the District Munsif is obviously irregular. Order 47, R. 1 is only applicable in cases of decrees or orders contemplated by the Code of Civil Procedure by aggrieved persons who from the discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within their knowledge or could not be produced by them at the time when the decree was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason seek a review. None of these conditions is satisfied in the present case. In the first place, O. 83 of the CPC which regulate pauper suits makes no provision for a Court extending time for payment of court-fee when it rejects an application for permission to sue as a pauper under any of the clauses of O. 83, R. 6. As a matter of practice, and of grace, it has been however usual for Courts to give a short time for payment of court fee when rejecting such application. The learned advocate for the respondents has argued on the basis that this review petition was maintainable as one to review the dismissal of the petition for failing to pay court-fee in time. He has urged that on 21st July 1945 the petitioners only had a portion of the court-fee they were called upon to pay and in fact the argument he advances is merely one for extending indulgence which has already been unduly stretched. Order 33, B. is make specific provision for applicants whose pauper petitions are rejected to file subsequent suits. They are at liberty to do so in the ordinary manner in respect of such right provided, they first pay the costs, if any, incurred by the Provincial Government and by the opposite party opposing the pauper application. In fact, strictly, the rejection of an application to sue to forma pauperis is under the Code intended to be penalised under O. 33, R. 15, and I am really unable to see any statutory support for the practice which has grown up of giving pauper applicant after the rejection of their petitions to sue in forma pauperis time to pay court fee and allowing them in fact to sue without first paying the costs of those opposing their pauper applications. I do not, however, propose to say anything to upset the existing practice which appears to have developed out of a feeling of charity towards bona fide pauper suitors except to say that a Court is under no legal obligation at all to give time to pay court fee when it rejects a pauper petition, though in special cases such a concession may perhaps be granted. The normal procedure contemplated by the Code is when a petition is rejected to leave the petitioner to his remedy under O. 33, R. 15 of the CPC.
5. The order, therefore, sought to be reviewed, namely, dismissal of the pauper petition after its rejection because court-fee had not been paid in time despite several extensions if really not one contemplated by the Code. It is quite impossible in any event to bring this review petition within the scope of O. 47, R. 1 of the CPC. I hold in the result that the review petition which the learned District Munsif allowed was not maintainable, and that the order that he passed requiring deposit court-fee on such a petition and full court-fee on the plaint being paid by a certain date as a condition precedent to the pauper petition itself being allowed is one nowhere contemplated under O. 33, and vitiated by material irregularity in the exercise of jurisdiction. The petition is allowed and the pauper petition will stand rejected. As regards the court-fee paid by the petitioners in the lower Court on this illegal order it is equitable that they should receive a refund of the court-fee they paid on the plaint. There are, however, no grounds for refunding them half the court-fee they paid on the review petition they filed under O. 47, R. 1 of the CPC. The fact that it is found to be not maintainable will not justify a refund of the deficit court-fee paid on it.
6. With these directions, the petition is allowed with costs.
C.R.K/D.R
7. Petition allowed.
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