Totaram Ichharam Wani v. Dattu Mangu Wani

Beaumont, C.J:—

This is a revision application made in respect of two orders made by the First Class Subordinate Judge of Jalgaon, one made on August 18, and the other on September 9, 1941.

The plaintiffs are suing for partition, and they filed a plaint on August 18, 1941, with a petition for leave to sue in forma pauperis, and on the same day, and before their application for leave to sue in forma pauperis had been considered, the learned Judge appointed ex parte commissioners under O. XXXIX, r. 7, of the Civil Procedure Code, 1908, with power to dig up the places on the defendants' land shown by the plaintiffs for the purpose of taking possession of ornaments. Subsequently on notice to the defendants the order was continued on September 9.

The first point taken is that the learned Judge had no power to make any order under O. XXXIX, r. 7, because there was no suit in existence. The argument is that until the plaintiffs' application for leave to sue in forms pauperis had been disposed of, no suit had come into existence. That argument is based on the terms of O. XXXIII. Section 26 of the Civil Procedure Code provides that every suit shall be instituted by the presentation of a plaint, and under O. XXXIII, r. 1, any suit may be instituted by a pauper. Rule 2 provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; and r. 8 provides that where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit.

The plaintiff in this case presented a plaint which was taken on the file, and which contained a petition for leave to sue as a pauper. It seems to me that plaint institutes the suit, whether the application to sue as a pauper is subsequently granted or not. The plaintiffs may subsequently elect not to proceed with their application, or their application may fail. In either of those events it seems to me that the suit has been properly instituted by the plaint, and it will be proceeded with, on that plaint in the ordinary course on the plaintiffs paying the Court-fees. In practice a plaintiff is usually given further time to pay Court-fees after his application to sue as a pauper has failed. If the application succeeds, then no doubt, the petition is to be deemed to be the plaint, but r. 8 does not provide that it is the plaint. I entertain no doubt myself that the plaint, whether it consists of the original plaint, or of the petition deemed to be a plaint, takes effect from the date when the plaint and the petition were presented. That has recently been held to be the correct view of the matter by Mr. Justice Gentle of the Madras High Court in Chidamberam v. Nataraja Mudaliar, where he followed the view expressed by the Privy Council in Skinner v. Orde. In that case the Board were dealing with a question of limitation and the Board expressed the view that a petition to sue as a pauper became a plaint, and under the statute of limitation the suit must be deemed to have been instituted when that application was filed. I think the case of Purna Chandra Chabri v. Tara Prasad Maity,(3) to which we were referred, was wrongly decided. In that case the Court held that an order for attachment before judgment could not be made at the instance of a person who had applied for leave to sue as a pauper before his application had been judicially determined in his favour. The learned Judges say “until the Judge has determined whether or not the plaintiff should be permitted to sue as a pauper, there is no suit before the Court; it is merely an application”. I think that view is wrong, and that the filing of the application in the form of a plaint, which is taken on the file as a plaint, commences the suit. It would be a strange thing if a plaintiff who desires leave to sue as a pauper, cannot apply to prevent the defendant from making away with the property in suit until his application for leave has been disposed of.

The second point taken is that the learned Judge made the original order of August 18 without notice to the defendants, contrary, it is said, to the provisions of O. XXXIX, r. 8. The point really is of merely academic interest, because the learned Judge continued the order for appointment of Commissioners on September 9 on notice to the defendants, and after hearing argument, there is no ground for setting aside the second order for want of notice, and the second order has superseded the first order, so that there is no object in setting aside the first order. I may point out that in cases in which it is necessary to take action promptly in order to prevent property from being made away with by the defendant, the Court, before proceeding under O. XXXIX, r. 7, can always appoint a receiver or grant an injunction ex parte. The appointment of commissioners, which was made in this case ex parte, was really less detrimental to the defendants than would have been the appointment of the same persons as receivers. There is, therefore, no real substance in the defendants' objection that the commissioners were appointed in the first instance without notice. But, as I have said, since the appointment was continued after notice, the point really does not arise.

I also think that there is no substance in the contention that the learned Judge had no power to give the commissioners authority to dig up the ornaments alleged to be in the defendants' land. I think that was a power which the learned Judge possessed under O. XXXIX, r. 7(b).

The application, therefore, fails, and must be dismissed with costs.

Wassoodew, J.:—I agree.

Application dismissed.

Y.V.D