S. K. MAL LODHA, J. - (1.) THIS application in revision is directed against the order dated July 16, 1974, passed by the learned Addl. District Judge, No. 2, Jodhpur holding that the review petition of the petitioner cannot be heard without payment of court-fee.
(2.) PLAINTIFF is petitioner and defendant is non-petitioner. The plaintiff instituted a suit for declaration and arrears of salary in the court of Munsif District Jodhpur in forma pauperis The Munsif held an inquiry and permitted her to prosecute the suit in forma pauperis. The suit was decreed with costs after trial. Aggrieved by the judgment and decree of the trial court, the non-petitioner lodged an appeal before the District Judge, Jodhpur which was transferred for disposal to the Additional District Judge No. 2, Jodhpur. He, by his judgment dated March 14, 1974, accepted the appeal and reversed the decree, passed by the trial court and dismissed the suit. The petitioner preferred a review petition under O. XLVII, R. 1, CPC. before the Additional District Judge No. 2, Jodhpur, praying therein that the judgment passed in appeal on March 14, 1974 may be set aside and the appeal be heard and decided afresh. The petition for review was filed on March 29, 1974. It was mentioned in the review petition that the petitioner is not in a position to pay the court fees of Rs. 117/- and that she was allowed to prosecute the suit in forma pauperis. It was, therefore, prayed that this petition for review in forma pauperis may be decided in accordance with law. On May 16, 1974, reply was submitted on behalf of the non-petitioner which contained a preliminary objection relating to the maintainability of the review petition without the payment of court fee and without submitting an application, as provided under O. XXXIII, r. 1 CPC. On May 28, 1974, an application under O. XXXIII, R. 9 and Sec. 151 CPC was moved on behalf of the non-petitioner. It was prayed in that application that the plaintiff petitioner may be dispaupered. This application was rejected by the learned Additional District Judge on May 28, 1974. At the time of hearing of the review petition on merits, a preliminary objection was raised from the side of non-petitioner that as O. XLIV, r. 2 CPC was not applicable to the petition for review, it is not maintainable in the absence of requisite court fee. Certain other points were also raised, which have been mentioned in the order-sheet dated May 28, 1974. On May 31, 1974, an application was moved on behalf of the plaintiff stating that permission to prosecute the review petition in forma pauperis may be granted. On July 1974, an application was filed on behalf of the non-petitioner mentioning there-in that as separate application for permission to prosecute the review petition, in forma pauperis was not filed along with the review petition, the application so submitted hits the provisions, relating to limitation, and, therefore, the objection raised by the non-petitioner be decided first. After hearing arguments, the learned Additional District Judge held that the review petition filed by the petitioner was a continuation of the appeal and not of the suit, and that as no application accompanying the review petition was filed separately for permission to prosecute the review petition as a pauper, there was non-compliance with the provisions of O. XLIV, R. 1 CPC. In this view of the matter, he declined to hear the review petition of the petitioner in forma pauperis and granted 15 days time to the petitioner to make good the deficiency of the court-fee, if she so liked. Aggrieved by the order dated May 16, 1974, the petitioner has filed this revision petition under Sec. 115 C. P. C. Appearing for the petitioner, Mr I G. Maloo, contended that the suit was allowed to be prosecuted in forma pauperis, that since the petition for review is a continuation of the suit, it is maintainable without payment of court fee, that O. XLIV, R. 1 CPC is only applicable to the pauper appeals and that no separate application for permission to prosecute the review petition in forma pauperis was necessary, as held by the learned Additional District Judge. In support of his arguments, Mr. Maloo referred to me the provisions of O. XXXIII, Rr. 1 and 8 and O. XLIV, Rr. 1 and 2 C. P. C. which were in force at that time. Reference to the provisions of C. P. C. made herein will be to those provisions of C. P. C. which were in force when the petition for review was filed and order under revision was passed. He did not bring to my notice any decided case bearing on the questions involved in this revision. Mr. Purohit, learned counsel for the non-petitioner urged that the petitioner has got no right to file the review petition in forma pauperis because the review petition is not a 'proceeding connected with the suit' within the meaning of O. XXXIII. R. 8 and that as the review petition is not a continuation of appeal under O. XLIV, R. 1 C. P. C. , it should have been accompanied by an application for permission to prosecute the review petition in forma pauperis. He placed reliance on May Nyein Yone vs. P. D. Patel (1), Serajguni Co-operative Urban Bank Ltd. vs. Bindhubashini Dassya (2 ). Mst. Rainta Merchant vs. Damru Mener (3), In re U. Anantha-krishna Baliga (4) and In re Devta Talipulamma (5 ). In these circumstances, a short but interesting question that arises in this revision is whether petition for review of the judgment passed in appeal arising out of a suit, which was allowed to be prosecuted by the plaintiff-petitioner (Respondent in appeal) as a pauper under O. XXXIII, R. 1 C. P. C. , is maintainable without payment of court-fee, prescribed by law, as it is a proceeding' connected with the suit'. O. XXXIII C. P. C. deals with suits by paupers. Rules 1 of O. XXXIII C. P. C. reads as under: "r. 1. Subject to the following provisions, any suit may be instituted by a pauper. Explanation - A person is a "pauper" when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject matter of the suit. " Rule 8 of O. XXXIII is important. It deals with procedure when the application for permission to sue in forma pauperis is granted. It, inter alia, provides that after the grant of application, it 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 process) in respect of any petition, appointment of a pleader of 'other proceeding connected with the suit. For pauper appeals, provisions have been made in O. XLIV, Rr. 1 and 2 Rule 1 thereof provides as to who may file appeal as a pauper and Rule 2 of O. XLIV lays down the procedure relating to inquiry into the pauperism. A Division Bench of the Allahabad High Court in Umda Bibi vs. Naima Bibi (6), while examining the provisions of Section 410 C. P. C. (old), which was one of the sections in the chapter of suit by pauper, held that when an application for review is presented in a suit in forma pauperis, that application, like the plaint in the suit, is not liable to any court fee. After considering the provisions contained in O. XLIV, R. 1, C. P. C. the learned Judges of the Calcutta High Court in Serajguni Co-operative Urban Bank's case (2), observed as under: "it follows therefore that when an application for review of judgment is presented the course of the proceedings in a suit in forma pauperis, that application like the plant in the suit is not liable to any court-fee. The observation of Allahabad High Court referred to above, with which we entirely agree, apply with the equal force to the case of an application for review of judgment passed on appeal by a pauper regard being had to the specific provisions contained in O. 44, R. 1, Civil P. C. allowing a person to appeal as a pauper/subject in all matters to the provisions relating to suits by paupers, in so far as those provisions are applicable. There can be no question that an application for review of judgment passed on appeal, must under the law, be considered to be in continuation of the appeal itself which was in forma pauperies, and both sound reason and obvious justice in a case of this description demand, that such an application must be held to be maintainable without payment of court fees, at the time of filing the same, as in the case of the memorandum of appeal allowed to be presented without payment of adequate court-fees. " The Division Bench of the Calcutta High Court followed the decision reported in Umda Bibi's case (6 ). In re U. Ananthakrishna Baliga's case (4), Abdur Rahman, J. , held that a petition for review cannot be regarded to be in the nature of continuation of the suit at least up to the time that it is not granted. He was, further, of the opinion that having regard to S. 4, Court-fees Act, the Court cannot admit an application for review on behalf of a respondent in forma pauperis in the absence of any thing in the Civil Procedure Code, or any other enactments that would authorise it so to do. To quote the learned Judge: "the Court possesses no power to exempt defendant or a respondent from paying the necessary court-fee, even temporarily, when they are required to pay the same at the time when proceedings are initiated by their except when they really stand in the position of the plaintiffs or appellants and can be brought in that category within the meaning of O. XXXIII and O. XLIV. " The provisions of O. XXXIII, r. 8 came up for consideration in In re Devta Talipulamma's case (5), wherein Kuppuswami Aiyar, J. , observed as under: "the scheme of the Code clearly shows that Order 33 was intended to relate only to proceedings in the Court in which the suit was filed and that in respect of the proceedings subsequently instituted by way of appeal, there is another provision made as to how parties should conduct those proceedings as paupers. I do not hence think I will be justified in accepting the contentions of the petitioner that he is entitled to pay no court-fee on a petition filed for revision of the lower Court's order under R. 115, by reason of the provisions of O. 33, R. 8. It is also significant that there is no provision separately made enabling parties to file applications without paying court-fees in the High Court except when proceedings are taken by way of appeal. " The learned Judges of the Orissa High Court in Mst. Kainta Merchant's case (3) while distinguishing May Nyein Yone's case (1) held that a review application is a proceedings connected with the suit within the meaning of O. XXXIII, and no court fee is leviable on an application for review of the judgment or the decree by a person who has been permitted to as a pauper. Heald J. , with whom Mya Bu. J. agreed in May Nyein's case (1) at page 281, states as follows: "the Code provides separately for suits, appeals, applications in revision and applications for review and has expressly provided that in certain circumstances leave to litigate informa pauperis may be given in the case of suits and appeals. 1 here is no similar provision for cases of revision and review. "
(3.) THUS according to the Allahabad and Orissa High Courts, application for review of judgment or decree passed in a suit for which permission to prosecute in forma pauperis has been granted is a 'proceeding connected with the suit, it can be determined without payment of adequate court fee. The Calcutta High Court has taken a view that appeal and petition for review of the judgment, passed in appeal is a continuation of the appeal it self, which was in forma pauperis and so it must be held to be maintainable without payment of court fee Contrary to this, the Madras and Rangoon High Courts have ruled that in the absence of any provision in the Civil Procedure Code in respect of review petition, leave to litigate in forma pauperis cannot be given as O. XXXIII and O. XLIV deal with suits and appeals respectively. In this case, defendant-non-petitioner was appellant before the Lower Appellate Court. The Lower Appellate Court accepted the appeal and reversed the decree, passed by the trial court, whereby dismissing the plaintiff's (respondent's) suit. The plaintiff-petitioner, who was respondent in the appeal applied for review of the appellate judgment. As such, I am of opinion that O. XXXIII, r. 8 is not attracted, for, O. XXXIII, deals with suits by paupers and review was not sought of the judgment or decree, passed in the suit. The appeal was filed by the defendant-non-petitioner who paid court-fee, prescribed by law on the memo of appeal, submitted by it in lower appellate court It, therefore, did not appeal in forma pauperis O. XLIV provides for pauper appeals Under rule 1 of O. XLIV, it is only a person entitled to prefer an appeal that can apply for leave to appeal as a pauper and such person is required to file an application for leave to appeal as a pauper which is distinct document from the memorandum of appeal. It may be mentioned that O. XLIV, r. 22 (5) CPC expressly provides for the filing of cross-objections in forma pauperis. In these circumstances, a petition for review of the appellate judgment by the respondent, cannot be regarded to be in the nature of continuation of the appeal, at least upto the time that it is not granted. In the absence of anything or any other enactments, I am unable to hold that a petition for review by the respondent in an appeal of the appellate-judgment is maintainable without payment of court fee. This view of mine stands supported by the decisions reported in May Nyein's case (1), In re U. Ananthakrishna's case (4) and In re Devta's case (5) With respect to In re U. Ananthakrishna's case (4), the learned Judge of the Orissa High Court observed: "air. 1943 Mad. 177 is clearly distinguishable. As the respondent in the appeal had applied for review, his Lordship was of the view that the principles of Order 33, Rule 8 would not apply. " Seranjguni Co-operative Bank's case (2) and Kainta Merchant's case (3) are not applicable to the case before me. ;