Costello, J.:— This Rule was obtained on behalf of one Salina Sheehan who is the defendant in a suit brought against her by Hafez Mohommed Fateh Nashib, the opposite party in these proceedings. The Rule was directed against an order made by the Subordinate Judge, 1st Court, 24-Pargannas, on 2nd December 1931.
2. It appears that the suit out of which this matter arises, was brought by Hafez Mohammad Fateh Nashib on the allegation that he was entitled to be the muttawali of certain properties of which a house No. 1, Store Road, Ballygunge, in the possession of the defendant Selina Sheehan is said to have formed part. We are told that, in fact, Mrs. Sheehan has been in possession of this particular property for a space of something like 12 years. She purchased it from certain persons and subsequently there was a suit in the Alipur Court the judgment in which in effect decided that the property in question had been lawfully alienated and acquired by Mrs. Sheehan. In the present suit we are not concerned with the actual merits of the case. The plaintiff had originally, for the purposes of court-fees, put a valuation upon the property in dispute of Rs. 5,100 and upon that footing he had paid appropriate court-fees. The defendant took exception to that and accordingly there was an investigation into the question of valuation as a preliminary issue in the suit, and as a result of the proceedings the Court came to the conclusion that the right valuation was Rs. 60,000 and the appropriate ad valorem court-fees ought to be levied accordingly. In his judgment which the learned Subordinate Judge gave on 3rd September 1931, after taking evidence and hearing the parties upon the matter, he says:
“In my opinion therefore the suit has been greatly under-valued and court-fees paid are insufficient. In this view of the matter the plaintiff will be required to pay the deficit court-fees on the value of Rs. 55,000”.
3. That value of Rs. 55,000 is of course the difference between the value which the learned Subordinate Judge found to be a correct value and the value which the plaintiff himself had originally put upon the property. The order concludes thus: “The plaintiff is directed to pay the same within a month from date.” There was a further direction that the matter should come up again before him on 2nd October 1931. On that date the plaintiff instead of paying the amount required, put in an application for further time within which to pay the additional court-fees, and after hearing the parties the learned Subordinate Judge gave the plaintiff further time until 17th November 1931. Again on that date the plaintiff failed to pay the court-fees required and once more he put in an application. On this occasion, however he said that he had no means to pay the full court-fees and therefore he had filed a petition to get himself declared a pauper and he also asked for a stay of further proceedings pending the disposal of the application. The Subordinate Judge thereupon made an order that the matter would be considered on 23rd November 1931. After two further adjournments the matter was finally adjudicated upon on 2nd December 1931. On that date the learned Subordinate Judge made an order in these terms;
“Heard both sides. Plaintiff has failed to pay the court-fees required as ordered by the Court. The natural consequence for such failure is ordinarily this; that the plaint should be struck oft, but here the plaintiff has filed an application to continue the suit as a pauper. If his application for being declared a pauper for the pur-purpose of the suit be allowed, he will be at liberty to continue the suit as a pauper. In such circumstances, I think, the suit should not be dismissed but kept in abeyance till the disposal of the pauper application.”
4. He added: “put up the suit for orders when the pauper application is disposed of.” Now it is with regard to that order that the defendant has moved this Court and she says, that order ought not to have been made in the circumstances of this case. It is contended, on her behalf, that having regard to the fact that the plaintiff had more than one opportunity in which to make up the deficit in court-fees, the learned Subordinate Judge ought to have dealt with the matter under the provisions of O. 7, R. 11 of the CPC. That rule, so far as is material, reads as follows:
“The plaint shall be rejected in the following case: When the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so.”
5. It is admitted by Mr. Mukerji on behalf of the opposite party in these proceedings, that is to say, on behalf of the plaintiff in the suit, that the effect of the learned Judge's order of 2nd October 1931 was to require the plaintiff to supply within the time mentioned therein the requisite stamp-paper. Dr. Mukerji has however argued that O. 7, R. 11, has no application to the present case, because he says that sub-R. (c) ought to be taken as only applicable to the position which arises when the plaintiff himself has properly valued the relief which it claimed, but has failed to pay the proper court-fees; and the rule ought not to be applied to a case where a proper valuation has been ascertained by the Court after investigation in the course of the suit itself. We see no reason at all for limiting the language with which this sub-section is couched, in the manner suggested by Dr. Mukherjee. The words “properly valued” are sufficiently wide to cover the case, where a proper valuation has been arrived at by the Court, equally with the case where the proper valuation has been stated by the plaintiff himself. Upon the assumption that O. 7, R. 11 does apply, it would appear that it was the duty of the learned Subordinate Judge to have rejected the plaint, that is to say, in the circumstances of this case, to have dismissed the plaintiff's claim when he failed to take advantage of the time given him within which to pay up the additional court-fees. That view of the matter is sufficient to show that the defendants's present application ought to succeed, but I think, having regard to the arguments put before us, I ought to make one or two observations with regard to another point.
6. Dr. Mukerji, arguing in support of the order made by the learned Subordinate Judge, said that it was quite competent for the learned Judge to deal with the matter in the way in which he did, because the provisions laid down in O. 33 with regard to suits by paupers are wide enough to permit of suits begun in the ordinary way being continued as pauper suits. He drew our attention to a number of decided cases in which that proposition seems to have been laid down. The leading authority on the point which for some reasons or other remains to have unchallenged since the time it came into existence, is the decision in the case of Thompson v. The Calcutta Tramway Co. Ltd. . [1893] 20 Cal. 319., in which Hill, J., followed a previous authority and decided that:
“a Court has power under Oh. 26, Code of Civil Procedure, to allow a suit instituted in the ordinary form, to be continued in forma pauperies.”
7. Chapter 26 of the former Code of Civil Procedure corresponds with O. 33 of the present Code. The decision of Hill, J., (supra) was however baaed solely on a decision of Pontifex, J., in the case of Nirmal Chandra v. Dayal Nath . [1876] 2 Cal. 130. which was followed by the Bombay High Court in the case of Revji Patil v. Sakharam . [1884] 8 Bom. 615.. Upon a reference to the decision in the case of Nirmal Chandra we find that the learned Judge gave no reasons for his judgment. He merely stated:
“I think the Court has power to grant this application, if the plaintiffs are actually paupers. The power to allow a case to be continued as a pauper suit is, I think, included in the power given to the Court to allow a suit in forma pauperis to be instituted.”
8. Upon that short judgment of Pontifex, J., the subsequent authorities are based. It is not necessary for the purpose of the present case that we should express a definite opinion as to whether we agree with the decision in Thompson v. The Calcutta Tramway Co. Ltd., or not. Speaking for myself, I merely observe that one of the provisions of O. 33 has reference to the institution of a suit by a pauper and after providing for certain stages of procedure the order in R. 8 runs thus:
“Where the application is granted, it shall be numbered and registered and be deemed the plaint in the snit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner.”
9. There is no machinery in O. 33 for dealing with the circumstances which would oust when, after a suit has once been started, particularly after a suit has been partly heard, the plaintiff suddenly finds himself for financial reasons, no longer able to continue the suit in the ordinary way but seeks to continue the suit as a pauper. However, O. 7, R. 11, is sufficient for our present purpose and in the circumstances of this case, we are of opinion, that the learned Subordinate Judge ought to have dealt with the matter under the provisions of O. 7, R. 11. The plaintiff had been given time on more than one occasion within which to pay the balance of court-fee and he had failed to do so. It seems to us therefore that the learned Judge ought to have rejected the plaint, that is to say, dismissed the plaintiffs' suit at that stage. Having regard to certain concomitant facts and circumstances of this particular case we think that justice requires that we should interfere with the order under the powers given by the Code of Civil Procedure under S. 115, Therefore we direct that this rule be made absolute and the order of the learned Judge be set aside. We also direct that the learned Subordinate Judge should deal with the matter in accordance with the observations made in this judgment. We make no order as to costs.
Jack, J.:— I agree.
S.N/R.K
10. Rule made absolute.