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Rajdeo Singh v. Jagdeo Singh
Factual and Procedural Background
This opinion concerns an application by the plaintiff, Rajdeo Singh, in revision against an order of the Subordinate Judge passed under Order 33, Rule 9, requiring him to pay the requisite court-fee on the plaint by a specified date. Initially, the plaintiff applied to sue as a pauper, and this application was granted. Subsequently, the plaintiff's certified guardian hypothecated a fractional share of the plaintiff's property for Rs. 2,240, part of which was deposited in court to set aside a certain sale, with the balance retained by the guardian. The defendant then applied under Order 33, Rule 9, for the plaintiff to be dispaupered on the ground that his means were such that he ought not to continue to sue as a pauper. The Court below found that the plaintiff was in possession of his share of the property, and that the defendants were not in possession of that share, rejecting the defendants' claim that they possessed only the plaintiff’s brother’s share. The plaintiff’s suit sought to set aside a deed of gift executed by his brother in favor of the defendants and to assert possession rights over the plaintiff’s share. The revision challenges the dispaupering order and the requirement to pay court fees.
Legal Issues Presented
- Whether the Court can determine the question of the plaintiff’s possession and means in the dispaupering proceeding under Order 33, Rule 9, even though the issue will be decided again in the suit.
- Whether an order dispaupering a plaintiff can operate retrospectively to require payment of court fees at the time of the order rather than at decree.
- Whether the explanation to Rule 1 affects the consideration of possession of part of the subject-matter of the suit in determining pauper status.
- Whether a prior declaration of pauper status creates res judicata preventing reopening of the question under Order 33, Rule 9.
Arguments of the Parties
Appellant's Arguments
- The question of possession and means should not be decided in the dispaupering proceeding as it is a matter to be determined in the suit itself.
- An order dispaupering the plaintiff should not operate retrospectively to require payment of court fees at the time of dispaupering; fees should be payable only at decree.
- The Court erred in considering possession of part of the subject-matter of the suit based on the explanation to Rule 1.
- A prior declaration of pauper status should operate as res judicata, preventing reopening of the question.
Respondent's Arguments
- The dispaupering proceeding can decide possession and means issues even if they arise again in the suit, as the proceeding is not a former suit within the meaning of Section 11 of the CPC and thus does not create res judicata.
- Rule 11 of Order 33 mandates payment of court fees upon dispaupering, supporting the retrospective operation of the order for fees.
- The explanation to Rule 1 distinguishes clauses for cases with and without prescribed court fees; possession of part of the subject-matter is relevant under the applicable clause.
- Order 33, Rule 9 explicitly allows reopening of the question of pauper status on specified grounds, negating res judicata effect.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court reasoned that the dispaupering proceeding under Order 33, Rule 9, legitimately involves determining whether the plaintiff’s means justify continuation as a pauper, even if the issue will be revisited in the substantive suit. This is because such a proceeding is not a “former suit” under Section 11 of the CPC, and thus its findings do not operate as res judicata. Regarding payment of court fees, Rule 11 of Order 33 clearly requires the plaintiff to pay court fees upon dispaupering, supporting the Court’s order for payment by a specified date rather than at decree. The Court rejected the appellant’s argument based on the explanation to Rule 1, clarifying that the relevant clause applies only where a court fee is prescribed, as in this case, and that the words “subject-matter of the suit” in the second clause cannot be applied to the first clause. Finally, the Court held that res judicata does not bar reopening the pauper status question as Order 33, Rule 9 expressly permits it on specified grounds.
Holding and Implications
The revision application is dismissed.
The Court upheld the dispaupering order and the requirement for the plaintiff to pay court fees by the date ordered. This decision confirms that dispaupering proceedings can independently assess a plaintiff’s financial means without res judicata effect on the substantive suit, and that court fees must be paid upon dispaupering as mandated by Order 33, Rule 11. No new precedent was established beyond affirming the application of these procedural rules in the present context.
1. This is an application by the plaintiff Rajdeo Singh in revision against an order of the Subordinate Judge passed under Order 33, Rule 9, declaring that he must pay the requisite court-fee on the plaint by a certain date. There was a proceeding by which the plaintiff applied to sue as a pauper and his application was granted. Subsequently to that, on 7th January, 1933, the certified guardian of the plaintiff hypothecated a fractional share of the plaintiff in certain property for Rs. 2,240, out of which Rs. ??? was deposited in court to have a certain sale set aside, and the balance of the money remained with the plaintiff's guardian. The defendant then applied under Order 33, Rule 9 for the plaintiff to be dispaupered. The application has been allowed under sub-rule (b) of that rule which states that a plaintiff should be dis-paupened “if it appears that his means are such that he ought not to continue to sue as a pauper.” The Court has found that the subsequent mortgage for a considerable sum of a fractional share of the disputed property shows that the plaintiff is in possession of this share. The plaintiff and his brother owned shares in six villages. The plaintiff's brother executed a deed of gift apparently in favour of the defendants who entered into possession of that share. The present suit has been brought by the plaintiff claiming that the deed of gift should be set aside, and also alleging that the defendants entered into possession not only of the share under the deed of gift but also of the share belonging to the plaintiff. The defendants allege that they took possession only of the share of the plaintiff's brother and not of the share of the plaintiff. The Court below has found that the plaintiff is in possession of his share and that the defendants are not in possession of that share. One objection which has been taken to the finding is that question is one which will be determined in the suit. It is therefore suggested by learned counsel that such a question cannot be decided in an application under Order 33. I know of no reason why this should be so. The mere fact that the issue will be decided again in the suit is no reason why it should not be decided in the proceeding for dispaupering. A decision of course in the proceeding for dispaupering will not act as res judicata in the case when the issue is before the Court as in issue in the suit, as the proceeding for dispaupering is not a “former suit”, within the meaning of Section 11 of the CPC, This disposes of the first and second grounds of revision.
2. The last ground argued was that an order dispaupering the plaintiff cannot operate retrospectively in respect of payment of court fees, and court fees could be realised from the plaintiff at the time of passing the decree.
3. This argument is said to be founded on a Madras ruling. But it appears to me that rule 11 of Orders 33 is conclusive on the point. This rule states that if a plaintiff is dispaupered the Court shall order the plaintiff to pay the court fees. The Court therefere has made a correct order to that effect.
4. Learned counsel also addressed me in regard to, the terms of rule 1, explanation, and he argued that the Court below was wrong in holding that the possession of a part of the subject-matter of the suit should be considered. In the explanation to R. (1) there are two clauses. The first clause applies where there is a fee prescribed for the plaint. There is such a in the present case. Therefore only the wording of that clause can be taken into consideration. The second clause is separated by the disjunctive conjunction “or” and the second clause applies where there is no fee prescribed for the plaint. In that second clause there is a reference to “the subject-matter of the suit.” Those words cannot be imported from the second clause into the first clause. The argument therefore of learned counsel based on the explanation to R. (1) is unsound.
5. The third ground of revision is that when a plaintiff has been declared a pauper res judicata prevents the question from being reopened. This point is contrary to R. 9, which provides for the question being reopened on any one of three grounds.
6. For these reasons I see no merit in this revision, and I dismiss it.
K.S
7. Revision dismissed.
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