Decided on October 17,1955

STATE Respondents


- (1.) THIS petition C. M. P. No. 794 of 1955 arises out of a prior position in the court, C. M. P. No. 35 of 1955, which had unsuccessfully prayed for leave to admit an appeal in forma pauperis. At the same time as this court refused leave, it granted permission to the petitioner-appellant to pay the court fees on the memorandum of appeal within two months and get the appeal admitted in the ordinary course. Petitioner thereupon filed C. M. P. No. 662 of 1955 seeking to withdraw the prayers in the appeal memorandum relating to the claim for maintenance both past and future and limiting the prayer in the appeal to a declaration that the 1st appellant was a legally wedded wife of the respondent and appellants 2 and 3 are children born of their lawful wedlock. The attempt was to sustain the appeal on payment of the fixed court fee of Rs. 10 as for a bare declaration. THIS petition met with the objection that there was no scope for splitting up the relief in the appeal as originally framed so as to give rise to a constituent relief by way of a bare declaration. Petitioner has subsequently filed this petition so as to permit her in the alternative to reduce the rate of the maintenance claim in the appeal memorandum to Rs. 3 per mensem and pay court fees for the appeal on the basis of a consequential diminished valuation.
(2.) LEARNED Counsel for the respondent-defendant in the case, objects that the prayer amounted to a withdrawal of a portion of the relief once allowed to be prosecuted and such prayer could not be entertained unless court fee was paid in the first instance in respect of the relief sought to be withdrawn. Reliance was placed by him on the Full Bench decision in sankaran Nambooripad v. Sirkar,1945 T. L. R. 33. In our opinion that case is clearly distinguishable. For that was a case where the plaintiff's suit was numbered and registered as a pauper suit and thereafter was prosecuted for some time. The plaintiff was then dispaupered and ordered to pay court fee and this order was confirmed by the High Court in Civil Revision. On the court fee being fixed for payment by the trial court, plaintiff having already paid part of the fee, applied for time but instead of paying the balance on the adjourned date, he filed application to withdraw or abandon the rest of the claim. It was held that the plaintiff was not entitled to do so unless court fees was paid in the first instance. During the course of his judgment Chief Justice Krishnaswami iyer pointed out the distinction as follows: "before a court passes an order settling the claim and the value thereof, for purposes of court fee it may be permissible for a party to apply and obtain the orders of the court in the matter of fixing the claim in the suit or the appeal and the court fee payable thereon. But when once that order has been passed there is no scope for any further jurisdiction in the court to exempt the payment of court fee under the guise of passing an order of withdrawal". (See page 39 of the report) Learned Counsel for the respondent says that orders had been already passed in this case also for payment of court fee on the appeal memorandum and there is accordingly no real distinction on the facts. It seems to us however that this argument proceeds on a misapprehension for here we are at the very early stage when the court had not yet entertained the appeal. At such initial stage there can be no objection in a party seeking permission to withdraw the appeal memorandum as filed and represent the same with diminished prayers and pay court fees for the balance of the reliefs left. This identical question came up in Duni Chand v. Aziz Khan, 10 I. C. 207. Justice Rattigan of the Punjab Chief Court allowing the prayer for withdrawal said: "there is a dearth of authority upon the question before me, but after full consideration I think that injustice, and upon principle, an appellant's prayer of this kind should be allowed. He argues that he is really entitled to claim a large sum, but when he finds that he must pay a heavy duty on his memorandum of appeal if his claim as a whole is to be considered, i am unable to find any just and reasonable ground for refusing him liberty to abandon part of his claim and to restrict it to such amount only as he can afford to pay duty upon. A plaintiff who is similarly situated has been held entitled to claim this right at the initial stage of a suit (Ram Pershad v. Bhiman, 27 All. 151 ). The same principle should surely apply to the case of a defendant who appeals from a decree passed against him, and at the very outset of the proceedings asks to be allowed to amend his memorandum of appeal by striking out part of his claim. " (The underlining is ours ). Similar question arose before the Patna High Court in rajendra Prasad v. Gopal Prasad,115 I. C. 678. In that case the valuation of the suit was sought to be increased when an objection was made to the application for leave to sue as a pauper. Subsequently the valuation of the appeal was reduced when the application for leave to appeal as a pauper was refused by the high Court. It was held that there was nothing to prevent the appellants from abandoning part of their claim and getting the appeal admitted on payment of reduced court fee.
(3.) WE cannot see that the respondent is in any way prejudiced by the order allowing the amendment in the appeal memorandum or that such order would be detrimental to the revenue. WE therefore allow the petition. The plaintiff will pay the court fee due on the amended appeal memorandum within seven days. There will be no costs in this petition.;

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