This is an appeal by the Plaintiff, Srimati Mrinalini Dabee, against an order of the Subordinate Judge of Hughly dismissing her suit under the following circumstances:—
On the 30th November, 1907 the Plaintiff presented a petition for leave to sue the Defendant, Srimati Tincowri Dabee, in formâ pauperis. This application was refused on the 28th March, 1908 on the ground that she was not a pauper and she was ordered to pay the costs of the Defendant and of the Government. The costs of the Government amounted to Rs. 164. On 6th May, 1908 the Plaintiff applied to the Court for leave to pay the full court-fees. On the 13th May, 1908 the Court gave her 3 days in which to pay and on the 16th May, 1908 extended the time for another 3 days. The fees for Rs. 325 were paid by the Plaintiff on the 1st May, 1908 and on 19th May, 1908 it was ordered that the suit be registered and fixed for settlement of issues on 3rd July, 1908. On 10th July, 1908 the Defendant filed her written statement pleading (among other grounds) that the petition to sue in formâ pauperis could not be stamped as a plaint and that the Plaintiff's suit must be taken to have been filed, at the earliest, on the day when she paid the court-fees and that it was barred by limitation. No thing was said in the written statement about the payment of the costs to Government of the enquiry into pauperism.
Issues were settled on 21st July, 1908. On 5th December, 1908 the Subordinate Judge heard arguments on issues 1 and 2 and on the 7th passed the order now under appeal dismissing the Plaintiff's suit. The Plaintiff has appealed and on 15th March, 1909 she paid in this Court the Rs. 164 due to the Government for the coses above-mentioned. In our opinion, the Subordinate Judge was clearly in error in dismissing the suit on either ground. There could be no possible objection to the petition to sue in formâ pauperis being registered as the plaint in the suit on the full fees being paid. This was done by the Court as of course on 19th May, 1908 and it would be most unjust more than 6 months later to tell the Plaintiff that she had no plaint on the file after all. It may be pointed out that the same course was adopted apparently without objection in the case of Aubhoya Chum Dey v. Bissesswari(1). The other ground, that she had not paid the costs of the Government in opposing her application for leave to sue as a pauper, is a more substantial one, but after consideration we think that it ought not to prevail. No doubt in terms sec. 413 of the Civil Procedure Code, 1882, makes it a condition precedent to the institution of a suit in the ordinary way by a person whose application to sue in formâ pauperis has been rejected, that he should first pay the costs incurred by the Government in opposing that application. But it is obvious that some demand should be made upon the would-be Plaintiff for such costs, either by Government or by the Court. It might well be that Government did not desire to press for their costs. The demand if made by the Court could be made either before it registered the plaint in the suit or at some later stage when the matter was brought to its notice. Here the plaint was registered without any such demand. When the matter was brought to the notice of the Court and the issue raised, the Court should have at once called on the Plaintiff to pay those costs. It would certainly not be justified in dismissing the suit on the ground of non-payment unless and until the Plaintiff had neglected or refused to comply with that demand. It would appear from her affidavit filed in this Court on 12th March, 1909 that the Plaintiff was ready and willing to pay those costs when the arguments had been heard and before judgment was delivered. However that may be the amount was paid into this Court and we presume is still lying here.
We do not desire to express any opinion on the question of limitation. That may depend on facts as to which we have not the materials at present before us to decide. The question on what precise date—whether on the date the Government's costs were paid into this Court or some earlier date the suit—must be taken to have been instituted, will have to be determined and also the precise date on which the cause of action arose. Then and then only will it be possible to say whether, the suit is or is not barred.
We set aside the order of the Subordinate Judge and remand the suit to his Court for trial on the merits. The Plaintiff must have her costs of this appeal. Hearing-fee 3 gold mohurs.
Suit remanded.