LACHIBAI SUNDERLAL AGARWAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS revision application raises a somewhat important point at to the interpretation of S. 31 of the Court-fees Act, 1870, which was introduced by the Court-fees (Bombay Amendment Act XII of 1954. The question arises in this was Petitioner No. 1, Lachibai, had filed a suit in forma pauperis against petitioner No. 2, Hiralal, and one Gulab, for a declaration that a certain document dated 5th December 1956 taken by Hiralal with regard to 1/3rd share in certain property and the right of defendant to get an amount of Rs. 20 per mensem was void and not binding on the plaintiff. , and for partition and separate possession of her 1/3rd share in certain house property situated in the Cantonment at Poona, and for other reliefs. The application for permission to file the suit in forma pauperis was presented on 14th December 1956 personally by the petitioner No. 1, lachibai, and that application was numbered as Pauper Miscellaneous Application No. 794 of 1956. It appears that, in this application, petitioner No. 2 was impleaded as defendant No. 1 and Bholanath, his brother was impleaded as defendant No. 2 by the order passed on 6th April 1957, the Court of the Civil Judge (Senior Division), at Poona permitted the applicant to sue as a pauper, and ordered registration of the application as a plaint, and it appears that the suit came to be numbered as Special Civil Suit No. 46 of 1957. It seems that defendant No. 2, Bholanath, died pending the suit, but his heirs were not brought on the record and his name was deleted. That order is dated 19th September 1957. On the same day, there was a compromise between the plaintiff and Defendant No. 1, and the terms of the compromise may be briefly stated as follows: The document dated 5th December 1956 was held to be void. It was agreed that defendant No. 1. Hiralal, should pay to the plaintiff during her life-time an amount of Rs. 45 per mensem in respect of her maintenance and the same was payable from 1st September 1957, the amount of maintenance of Rs. 45 in respect of September 1957 being made payable on 10th October, 1957, and thereafter the maintenance amount for each month was to be paid on the 10th of each moth. If the maintenance amount was not paid it was to be recovered from some house property on which a charge was created, and it was also agreed that defendant No. 1 was to be personally responsible for the payment of this amount of maintenance. The third condition in the compromise was that as the suit was filed in the forma pauperis, the amount of the court-fee stamp that was payable was to be paid by defendant No. 1, and the fourth term created a charge on house No. 16 in the Ghorpadi Bazar, worth about Rs. 10,000. The registration expenses of the decree were also to be paid by defendant No. 1 to the plaintiff. The plaintiff gave up her right regarding house No. 1952 situated in the Cantonment of Poona and it w as also provided that the plaintiff should give a regular receipt of the maintenance paid by defendant No. 1, and without such a receipt, it would not be possible for the defendant to contend that he had paid the amount of maintenance. There was in short the terms of the compromise arrived at between the parties on 19th September, 1957 (Exhibit 12 ). The Court also passed an order on the same day on the compromise application, stating that the plaintiff and defendant No. 1 had personally admitted the compromise and the same was sanctioned and decree in terms of the compromise was ordered to be drawn up. It was further directed that as the suit w as in forma pauperis, a copy of the decree was sent to the Collector, and the court-fee was to be recovered from defendant No. 1. It appears that the decree having been sent to the Collector, defendant No. 1, Hiralal, paid an amount of Rs. 916. 87 np. As court-fee sometime in December, 1957, and the Mamlatdar wrote to the Court of the Civil Judge (Senior Division), at Poona, in which the suit was pending, informing the court of the recovery of the said amount from the said Hiralal, and further stating that arrangement may be made to receive the amount from his office on production of an authority, and if approved the remittance would be arranged in form of court-fee stamps in the name of defendant No. 2. Now, the mention of defendant No. 2 in this letter of the Mamlatdar, dated 16th December, 1957 appears to be a mistake, because there is no dispute that the amount was paid by Hiralal, defendant No. 1. defendant No. 2 having already died, he was not a party to the compromise. On 9th December 1957, before the Mamlatdar's letter referred to above was received by the Court, an application (Exhibit 15) was made o behalf of the defendant, stating that a sum of Rs. 916. 87 np. , was paid by the defendant to the Mamlatdar towards the court-fee and that is evidenced by the receipt, dated 7th December 1957 from the Mamlatdar. The application further requested that the necessary certificate of refund may be issued in favour of defendant inorder to enable him to get the refund to which he was entitled in view of the terms of the compromise which was arrived at prior to the filing of the application. This application was endorsed by the pleader for the plaintiff, and it was stated that the plaintiff had no interest in court-fee which was paid in defendant's name, and had no objection to refund, if it could be legally granted. It appears, however, that it was realised that it would be the plaintiff who would have to make such an application, and on 27th December 1957, an application Exhibit 16, was filed on behalf of the plaintiff, in which it was stated that as the court-fee had been recovered, the plaintiff was entitled to a refund of Rs. 458. 43 np. , and it was further stated that the amount had been paid to the Mamlatdar by defendant Hiralal. This application was endorsed by the pleader on behalf of defendant, stating that the defendant has no objection to the granting of this application as the payment was made for and on behalf of plaintiff and at her instance. The learned trial Judge, considering the provisions of S. 31 of the Court-fees Act, held that the defendant had no right under S. 31 to claim the refund. He also rejected the contention of the defendant that the court-fee stamp amount was paid by defendant as agent of the plaintiff. He also took the view that in the present case the Court-fee was not paid before the settlement. He, therefore, held that as the Court-fee was not paid by the plaintiff and as payment by defendant cannot be regarded as payment on behalf of plaintiff as her agent and as payment of court-fee stamp was not before the settlement, S. 31 would have no application. He, therefore, rejected both applications, Exhibits 15 and 16 with costs. It is against this decision that the present civil revision application has been filed by petitioner No. 1, Lachibai, original plaintiff, and petitioner No. 2, Hiralal, original defendant No. 1, and the State of Bombay has been impleaded as opponent.

(2.) SECTION 31 of the Court-fees Act was inserted by S. 10 of the Court-fees (Bombay Amendment Act, 1954, which received the assent of the President and was published in the Government Gazettee on 11th March 1954. It has to be mentioned that the Court-fees Act as amended in 1954 has been replaced 'by the Bombay Court-fees Act, 1959, being Bombay Act 36 of 1959, which came into force on 1st August 1959, and the provision corresponding to S. 31 of the Old Act is section 43 in Chapter VII of the Bombay Court-fees Act, 1959, which further provides for refund of fees in certain circumstances even in the case of any appeal or cross-objection. But so far as the present case is concerned there is no dispute that we are concerned with S. 31 of the Court-Fees Act, 1870, as inserted by S. 10 of the Court-fees (Bombay Amendment) Act XII of 1954. Now, S. 31 runs as follows:

(3.) NOW, in order to examine the correctness of these rival arguments, it is necessary to consider the provisions of Order XXXIII of the Civil Procedure Code. Order XXXIII deals with the subject of suits by paupers, and Rule 8 of that Order provides that where a pauper application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit. It will be noticed that under this rule, as soon as the application by the pauper for permission to sue in forma pauperis is granted, the application is to be deemed as a plaint in the suit, and the plaintiff, will not, therefore, have to pay any Court-fee in respect of any proceeding connected with this suit. But this rule does not provide for the ultimate payment of the court-fee on the plaint. As I have already indicated, in the present case the application of petitioner No. 1 to be permitted to sue as a pauper, was granted on 6th April 1957, and the suit came to be numbered as Special Civil Suit No. 46 of 1957. Rule 9 of Order XXXIII provides for dispaupering, but we are not concerned with this rule. Under Rule 10, it is provided that where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same and shall be a first charge on the subject-matter of the suit. Rule 11 provides for procedure where the papuer fails, and it stated that there where plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed on the grounds mentioned in clauses (a) and (b), the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit to pay the court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper. Now, the present obviously is a case which is not governed by Rule 11 of Order XXXIII. In this case, the plaintiff has in fact obtained a partial relief claimed by her in fact obtained a partial relief claimed by her in the suit, and, in my view, it would be the provisions of Order XXXIII, Rule 10, that would be applicable. Now in a suit which is allowed to be filed in forma pauperis as soon as the application is granted, the application itself becomes a plaint in the suit, but the plaintiff does not cease to be liable to pay the court-fee on the plaint, though he has not to pay the court-fee initially in order to be able to prosecute the suit. Where he succeeds, provision is made as regards the payment of court-fees under Rule 10 and where the pauper fails, the procedure under Rule 11 of Order XXXIII is to be followed. Under Rule 11-A, where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff the Court shall order that the amount of court-fee which would have been paid by the plaintiff it be had not been permitted to sue as a pauper shall be recoverable by the State Government from the estate of the deceased plaintiff. Rule 12 provides that the State Government shall have the right at any time to apply to the Court to make an order for the payment of court-fees under Rule 10. Rule 11 or Rule 11-A. Rule 13 provides that all matters arising between the State Government and any party to the suit under Rule 10, Rule 11, Rule 11-A or Rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of S. 47. Under Rule 14, where an order is made under Rule 10, Rule 11 or Rule 11-A, then Court shall forthwith cause a copy of the decree or order to be forwarded to the Collector, who may without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.