Verma, J.:— The first point raised by the learned counsel is that the order of the learned Judge, dated the 28th of October, 1939, does not show that he perused the application for permission to appeal as a pauper as was his duty under the proviso to order XLIV, rule 1 of the Civil Procedure Code. The basis of this argument is that the learned Judge has said in the order in question that he has read the judgment of the court below, but does not say that he has perused the application also. I cannot accept such an argument. I have no reason to believe that the learned Judge did not know, or did not do, what, according to the law, was his duty.
Learned counsel next raises a point which was not raised in the court below. It is contained in ground No. 4 of the petition for revision. It is stated there that the applicant was in prison at the time of the filing of the memorandum of appeal in the court of the District Judge and was therefore exempt from payment of any court fee under section 19, clause (xvii) of the Court Fees Act. The only basis which learned counsel has for asserting that his client was in prison at the time when the memorandum of appeal was filed in the lower appellate court is a statement in the mukhtarnama khas which his client executed on the 25th of October, 1939, in favour of one Babu Singh authorizing the latter to present the memorandum of appeal on his behalf. The sentence on which reliance is placed may be thus translated: “I have been arrested and am at this time in tahsil Fatehabad under arrest on account of non-payment of motor tax.” It is also pointed out that the mukhtarnama khas purports to have been attested by a gentleman who is described in the attestation as the Tahsildar Magistrate of Fatehabad and it is urged that establishes the fact that the applicant at the time of the execution of the mukhtarnama khas was in some sort of duress imposed upon him by the Tahsildar of Fatehabad.
In the first place, I am not prepared to allow such a ground to be raised in revision for the first time. The point obviously involves a question of fact, and this Court cannot arrive at any satisfactory conclusion without having findings of fact recorded by the court below. In the second place, the memorandum of appeal was presented in the lower appellate court on the 27th of October, 1939, that is, two days after the execution of the mukhtarnama khas. There is absolutely no evidence to show that the applicant was in any sort of duress on the 27th of October, 1939. In the third place, the application before me is one for the revision of an order refusing to allow the applicant to appeal as a pauper, and not of an order passed on an application praying that the provisions of section 19, clause (xvii) of the Court Fees Act be applied to the memorandum of appeal filed by the applicant. In the fourth place, the provision of law relied upon, namely section 19, clause (xvii) of the Court Fees Act, does not in my opinion apply to a case like this. The petition mentioned in that clause must in my judgment be a petition in respect of, or connected with, or arising out of, the matter in connection with which the petitioner is in prison, in duress or under restraint. If the argument of the learned counsel is accepted, the results will be startling. To mention only one aspect of the matter, all that a person, who is desirous of filing a suit—frivolous or otherwise—for which the maximum court fee prescribed by the Court Fees Act is payable, need do to avoid the payment of the court fee is to make default in the payment of a trifling amount out of some tax or other, which is recoverable as land revenue, and thus induce the authorities whose duty it is to collect the tax to arrest him and to detain him just long enough to enable him to have a special power of attorney attested by the officer detaining him and to have the plaint filed by the special attorney so appointed. Other similar consequences are easily conceivable. The legislature could never have intended that the clause in question should have any such meaning.
I dismiss the application in revision with costs.