(a) Civil Procedure Code (V of 1908)‑‑
‑‑‑S. 149& 0. XXXIII, Rr. 5, 7 & 15‑‑Pauper suit‑‑Court‑fee‑ Application to sue as pauper rejected by Court‑‑Court passing order under S.149, C.P.C. allowing applicant time to pay deficit court‑fee, held, must have seisin of case at time prayer made by applicant for time to pay court‑fee.
(b) Civil Procedure Code (V of 1908)‑‑
‑‑‑S. 149 & 0. XXXIII, Rr. 5, 7 & 15‑‑Pauper suit‑‑Pauper in event of rejection of his application for permission to sue as pauper making no prayer written or oral either before Additional Registrar or before Single Judge to allow him to pay deficit court‑fee but making such prayer oral as well as written before Supreme Court when his appeal was near to be dismissed as time‑barred‑‑Supreme Court instead of deciding prayer of applicant itself directing High Court to deal with same‑‑Contention that High Court lost seisin of case and could not therefore pass any order on prayer of applicant, held, was not tenable.
Alopi Parashad and others v. Mst. Gappi and others A I R 1937 Lah. 151; Mahadev Gopal v. Bhikaji Vish,ram A I R 1943 Bom. 292; Mathur Singh v. Sudama Debi A I R 1954 Pat. 170; Abdul Aziz Yousfani & Sons v . Haji Ali Muhammad & Co. P L D 1968 Kar. 883; Jagadiswari Debi v. Turkan Bibi A I R 1936 Cal. 28; Chunna Mal v. Bhagwant Kishore A I R 1936 All. 584; Devendar Kumar v. Mahanta Raghuraj A I R 1955 All. 154 and Kalap Nath Singh v . Shyama Nand A I R 1955 All. 159 ref.
(c) Civil Procedure Code (V of 1908)‑‑
‑‑‑S. 149 & O.XXXIII, Rr. 5, 7 & 15‑‑Pauper suit‑‑Payment of deficit court‑fee‑‑Applicant having lost every thing in East Pakistan and shares of company in his possession being only paper documents his application for leave to sue in forma pauperis not appearing mala fide‑‑Applicant allowed time to pay court‑fee and on his payment of court‑fee his pauper application ordered to be registered as a suit for taking further proceedings in accordance with law.
ARK NAVIGATION COMPANY OF PAKISTAN LTD. VS ESSO PAKISTANP L D 1987 Karachi 660Before Saeeduzzaman Siddiqui, JARK NAVIGATION COMPANY OF PAKISTAN LTD. and another‑‑AppellantsversusESSO PAKISTAN and another‑‑RespondentsCivil Miscellaneous Application No.775 of 1983 in Judicial Miscellaneous No. 40 of 1975 and Suit No.133 of 1984, decided on 23/12/1983.
ORDER
The applicant has applied for extension of time by six months to pay the court‑fee. The application is opposed by the defendants very vehemently.
The applicant applied for permission to sue as a pauper. The application was dismissed by the Addl. Registrar (O.S.) by order dated 29‑8‑1977 holding that the applicant is not a pauper. An appeal against the above order of Addl. Registrar (0. S.) also failed before a learned Single Judge of this court who dismissed the same by order dated 5‑11‑1978. A further appeal filed before the Supreme Court against the above order of learned Single Judge met with the same fate when it was dismissed as time‑barred on 1‑2‑1983. However, after dismissal of his appeal before the Supreme Court, but before the order was singed, the appellant prayed before the Court orally that he may be allowed time to pay the court‑fee in the circumstances of the case and this oral prayer was followed by a written application containing similar request. The Court while dismissing the appeal, therefore, made the following observation:‑
"After hearing both the learned counsel (learned counsel for the respondents stated that he has notice and that he is ready to argue) we consider it fit and proper to leave this question for the learned trial court to decide. The petitioner if he chooses to pursue the matter further by making payment of court‑fee, if so advised, may do so by making an application under Order XXXIII, Rule 15 and section 149 C.P.C. before the trial court. The question of limitation in the suit will also be decided by the said court after considering all available pleas to be raised by either side. We, however, remark that this court has concluded the question of application for suing as a pauper without dismissing it on merits. The petitioner has lost the appeal in this behalf, only on ground of limitation."
It is in pursuance of the above observations of the Supreme‑. Court that the applicant has now sought extension of time to pay the court‑fee. The learned counsel for the respondents contends that the Court having once rejected the pauper application on merit cannot subsequent to that allow payment of court‑fee and as such the above observation of the Supreme Court should be construed as having reference to a fresh suit which may be instituted by the plaintiff/ applicant as provided in Rule 15 of order XXXIII. It is also contended that the Court having rejected the pauper application on merits ceased to have jurisdiction in the matter which it could not acquire subsequently because of the observations of the Supreme Court reproduced above. In support of his above, contentions the learned counsel for the respondents has referred to the case of Alopi Parashad and others Vs. Mst.Gappi and others (AIR 1937 Lahore 151); Mahadev Gopal Vs. Bhikaji Vishram (AIR 1943 Bombay 292); Mathur Singh Vs. Sudama Debi (AIR 1954 Patna 170) and Abdul Aziz Yousfani & Sons Vs. Haji Ali Mohammad & Co. (PLD 1968 Karachi 883).
In the 1st referred case of Alopi Prashad the trial court rejected the pauper application but in the end remarked that the plaintiff was at liberty to prosecute the suit on payment of necessary court‑fees. The plaintiff thereafter applied for payment of necessary court‑fee and upon its payment the pauper application was converted and registered into a suit which was finally decreed in favour of plaintiff. In appeal against the decree the learned Judges of the Division Bench of the Lahore High Court took the view that an application to sue as a pauper is a potential plaint. If it is rejected by the Court under Rule 5 or 7 of Order 33 CPC, it never ripens into a plaint but if it is granted it ripens into a plaint and dates back to date of presentation of the pauper application. 11 was also held that if the application to sue as a pauper is rejected, subsequent payment of court‑fee could not revive a potential plaint which ceased to exist when the application was rejected and the only course open to the plaintiff in such circumstances was to file a fresh suit. It was accordingly held in that case that the suit shall be deemed to have been instituted on the date when the court‑fee was paid. The ratio in Alopi Parashad's case seems to be that a simultaneous direction of the court allowing the plaintiff to pay the court‑fee while rejecting the pauper application could not have the effect of deeping the pauper application pending and alive, so as to save the effect of statute of limitation on the suit which is registered after payment of court‑fee. in Mahadev Gopal's case, the Romhay High Court also took the view that when once the court rejects the pauper application without keeping it alive as an unstamped plaint and granting the applicant time to par the requisite court‑fee, the proceedings came. to an end and the court has no power to grant time to plaintiff by a separate and subsequent order to pay the same. The ratio in the Bombay case however, is that it is possible for the court .to allow time to the applicant to pay court‑fee while rejecting a pauper application and in such an event if the applicant pays the court‑fee the suit relates back to the date of institution of pauper application and to this extent the Bombay view is different from Lahore view expressed in Alopi Parashad's case which took the extreme view that the Court while rejecting the pauper application could not simultaneously keep the proceedings alive and allow payment of court‑fee by: the plaintiff so as to. save .the suit from the effect of statute of limitation. The view expressed by Patna High Court in Mathura Singh's case is same as expressed by Bombay `High Court in Mahader Gopal's case. However, the view taken by Calutta High Court in this regard is totally different from Lahore, Bombay And Patna view referred to above. In. the case of Jagadiswari Debi Vs. Turkan Bibi (AIR 1936 Cal. 28), the Calcutta High Court took the view that an application to sue as a pauper under section 33 Rule 2 CPC which contains all the characteristics of plaint in addition to the prayer that the applicant may be allowed to sue as a pauper, is a plaint required to be filed in a suit and the refusal by the Court to grant leave to plaintiff to sue as a pauper only terminates the proceedings in so far it relates to the prayer to grant leave to plaintiff to sue as a pauper and does not amount .to rejection of plaint, which very much remains before the Court as a document on which proper court‑fee is not paid and therefore the Court may under section 149 CPC could come to the assistance of plaintiff and extend the time for payment of court‑fee. All the above noted cases which were decided by the Division Benches of different High Courts in India alongwith several other cases on the point came up for consideration before a Full Bench of Allahabad High Court in the case of Chunna Mal Vs. Bhagwant Kishore (AIR 1936 Allahbad 584) in which the following two questions were referred to the Court for decision: ‑---
"(1) Whether while rejecting the application for permission to sue as a pauper the Court can under section 149 CPC, allow the applicant to pay the requisite court‑fee and treat the application as a plaint.
(2) Whether after rejecting the application for permission to sue as a pauper, can the Court by a separate and subsequent order allow the applicant to pay the requisite court‑fee under section 149 CPC and ‑ treat the application as a plaint.".
The learned Judge of the Full Bench after reviewing exhaustively the case law on the point unanimously disapproved the Calcutta view in Jagadiswari's case that the application under Order 33 Rule 2 CPC from the very beginning is a composite document consisting of a plaint as well as an application for grant of leave to sue as a pauper and therefore while the Court refuses or rejects the application to grant permission to sue as a pauper it does not terminate the plaint which could be dealt with by the Court as an under-stamped document and time could be granted by a separate and subsequent order to the plaintiff to pay the deficit court‑fee. The learned Judges were also unanimous in their opinion that when once the Court rejects the pauper application the proceedings come to an end and thereafter by a separate and subsequent order the Court cannot allow payment of court‑fee, on the pauper application so as to revive it as a plaint and relate it back to the date of institution of the pauper application. There was, however, split in the opinion of the learned Judges of Full Bench on the point that whether the Court while rejecting or refusing the application to sue in forma pauperis, could at the same time permit the applicant to pay the court‑fees on the applications so that the same may be treated as a plaint dating it back to the date of presentation of the pauper application. The two of the learned Judges of Full Bench (Sulaiman, C.J. and Bennet J. ) held the view that if the application to sue as a pauper is rejected under Rule 5 of Order 33 CPC the Court could simultaneously allow the applicant time under section 149 CPC to pay the deficit court‑fee so that the plaint may relate back to the date of filing of pauper application but if the Court refused the application under Rule 7 of Order 33 CPC then the Court could not do so and in that event the only remedy open to the applicant is to file a fresh suit after payment of costs, if any, awarded to Government and the opposite party as provided under Rule 15 of Order 33 CPC. The learned Judge drew a distinction between "rejection" of a pauper application under Rule 5 and its "Refusal" under Rule 7 of Order 33 CPC by the Court and accordingly answered the first question referred to the Full Bench in the affirmative and the second question in the negative. I may also mention here the minority view of Allosp J. in Chunna Malls case as this view found favour with the later two Full Benches of the same Court,. Allosp J. was of the view that whether the Court refuses the application under Rule 7 or rejects it under Rule 5 of Order 33 CPC, in either case, while doing so, it can under section 149 CPC permit the plaintiff to pay the deficit court‑fee and if the court‑fee is paid accordingly the proceedings will be deemed to have commenced on the date of filing of pauper application. The following are the conclusions of Allosp J. in Chunna Malls case:‑‑
"My conclusion is that a Court when it refuses to allow an applicant under 0.33 to sue as a pauper may at the same time give him permission to stamp his application, treat it as a plaint. The point is that we should look to the substantial intention of the Court at the time when it still has jurisdiction under S.149, Civil P.C., and if it means to exercise that jurisdiction before the proceedings came to an end, we should not say that it is incompetent to do so merely because it expresses its intention at the same time not to allow the applicant to sue as a pauper."
I will now refer to the two later decisions of Full Benches of Allahabad High Court reported as Devendra Kumar Vs. Mahanta Raghuraj (AIR 1955 Allahabad 154) and Kalap Nath Singh Vs. Shyama Nand (AIR 1955 Allahabad 159). The Full Bench in Kalap Nath Singh's case was presided over by five learned Judges of that Court and was constituted to reconsider the view of Full Bench expressed in Chunna Malls case which is already referred by me earlier in this order and decision in this case is earlier in point of time than the decision in Devendra Kumar's case. The Full Bench in Kalap Nath Singh's case re‑affirmed the view in Chunna Malls case to the extent that after the Court had rejected or refused the application to sue as a pauper, it looses seisin of the case and the document is no longer before it. Therefore the Court cannot exercise jurisdiction under section 149 CPC and grant time to applicant to pay the deficit court‑fee. However, on the question, that whether the Court while disallowing the application' to sue as a pauper could simultaneously grant time to applicant under section 149 CPC to pay the court‑fee, the Full Bench unanimously resolved as follows:‑
"(6) It often happens that pauper applications, which are contested take some time before final orders can be passed thereon and during this period some times limitation for filing the suit on payment of court‑fees expires. If a bona fide application for leave to sue in forma pauperis has been filed, merely because the petitioner has not been able to prove that he was a pauper on the date of the suit, his claim should not be allowed to get barred and he should be given a chance to pay the court‑fee and continue the proceedings. When, therefore, a Court is not satisfied that the petitioner is a pauper but has no reason to think that the application was not a bona fide one, it should, before it has signed the order disallowing the prayer to be allowed to sue in forma pauperis, grant time for payment of court‑fees. If before signing the order disallowing the prayer to sue in forma pauperis an application, oral or written, has been made to the Court praying that time for payment of court‑fees be granted, it is the duty of the Court to pass a suitable order on that application as part of the order disallowing the prayer to sue in forma pauperis. If by mistake or oversight this has not been done, the Court has jurisdiction to correct its own error by reviewing its previous order rejecting the application and by adding thereto a suitable order dealing with the prayer contained in the application for time. In the case before us, however, no prayer was made and no order granting time was passed at the time when the petition was rejected on 13‑11‑1943, and we have already held that after the pauper application has been finally dismissed there is no jurisdiction in the Court to grant time, several days later, to pay the court‑fee."
In Davendra Kumar Bharti's case which was decided by a Full Bench of Allahabad High Court consisting of three out of the five learned Judges who constituted the Full Bench in Kalap Nath's case, once again the correctness of the majority view of Full Bench in Chunna Malls case came up for consideration. The learned Judges of the Full Bench this time specifically referred the minority view of Allsop, J. in Chuna Malls case and approved the same. The following observations of the Full Bench appearing at page 155 of the report may be reproduced here with advantage‑.‑
(8) We agree with Allsop J.'s decision in‑‑ Chunna Malls case (FB) (A) that once it is admitted that the application for permission to sue in forma pauperis may be converted into a plaint by payment of the court‑fee it must be conceded that this can only be done under the provisions of S.149 of the Code. If S.149 is applicable, there does not seem to be any good reason why the Court should not exercise the discretion given under that section while it is still seized of the application. "
I may mention here that one of the learned Judges (V. Bhargara J.) of the Full Bench which decided Devendra Kumar's case expressed some difficulty on the language of various rules of Order 33 CPC in agreeing with the view that a Court can, when refusing permission to sue as a pauper under Rule 7 (3) grant time to the applicant to pay court fee under section 149 CPC but in the end reach the same conclusion as was arrived at by the other two learned Judges of the Full Bench.
In the light of the above discussion the true legal position in my humble opinion emerges as follows:---------
(1) That a Court while rejecting an application for leave to Sue as a pauper under Rule 5 or refusing the same under Rule 7 (3) of Order 33 CPC, may, if it is satisfied that the application was not mala fide, permit the applicant to make good the deficiency in the court‑fee under section 149 CPC and if the applicant pays the same within the time allowed by the Court, the application will be treated as a plaint and shall be deemed to have been presented on the date of filing of pauper application.
(ii) That where the Court rejects or refuses an application for leave to sue as a pauper, and before the order is signed, the applicant makes either an oral or a written prayer for time to pay the court‑fee, it is the duty of the Court to pass a suitable order on the application as part of the order disallowing the prayer to sue in forma pauperis and if by mistake or inadvertence the Court omits to pass such an order, the Court has the jurisdiction to correct the error by reviewing its own order and by adding thereto such suitable order as may be necessary in the circumstances of the case.
(iii) Where however the court rejects the pauper application or refuses leave to sue in forma pauperis absolutely without allowing any time to applicant to pay the court‑fee under section 149 CPC and no prayer oral or written is made to the Court at the time of passing and signing of the order then the Court cannot by a separate and subsequent order allow time to the applicant under section 149 CPC to pay the court‑fee on the application.
It, therefore, necessarily follows that in order to enable the Court to pass an order under section 149 CPC allowing time to an applicant; whose pauper application is either rejected or refused by the Court to pay the deficit court‑fee on the application, it must be shown that the Court has not lost seisin of the case at the time the A prayer is made by the applicant for time to pay the court‑fee. In the case before me it is an admitted position that the Addl. Registrar (OS) while refusing leave to sue as a pauper to the applicant on 29‑8‑1977 did not allow any time to him to pay the court‑fee on the application under section 149 CPC. If it is also an admitted position that the learned Single Judge who heard the appeal against the order of Addl. Registrar (OS) dated 29‑8‑1977 also did not allow any time to the applicant to pay the court‑fee under section 149 CPC while rejecting the appeal on 5‑11‑1978 and there appears to be no prayer written or oral made either before the Addl. Registrar or before the learned Single Judge by the applicant under section 149 CPC to pay the deficit amount of court‑fee at the time of passing of those orders. However, when the appeal of the applicant before the Supreme Court came up for hearing and was being dismissed as time‑barred, at that time, before the order dismissing the appeal was signed, an oral prayer was made by the applicant to pay the court‑fee and this oral prayer was followed by a written application containing the same B prayer and on that Honourable Supreme Court passed the order which is reproduced in the earlier part of this order. It cannot be doubted that the effect of admission of appeal by the Supreme Court was that the whole matter was re‑opened before it and a prayer having' been made by the applicant before that Court to pay the ‑court‑fee, the same could be granted by the Court. The Supreme Court, however, instead of deciding the aforesaid prayer of the applicant itself directed this Court to deal with the same. In these circumstances, in my humble opinion, it cannot be argued that this Court lost seisin of the case and therefore could not pass any order on the application of applicant under section 149 CPC. I, therefore, overrule the objection of the respondent that this Court has no jurisdiction to pass any order on the application of respondent under section 149 CPC praying y. for time to pay the court‑fee.
M. Y. H. /2497/KOrder accordingly.
(a) Civil Procedure Code (V of 1908)‑‑
‑‑‑S. 149& 0. XXXIII, Rr. 5, 7 & 15‑‑Pauper suit‑‑Court‑fee‑ Application to sue as pauper rejected by Court‑‑Court passing order under S.149, C.P.C. allowing applicant time to pay deficit court‑fee, held, must have seisin of case at time prayer made by applicant for time to pay court‑fee.
(b) Civil Procedure Code (V of 1908)‑‑
‑‑‑S. 149 & 0. XXXIII, Rr. 5, 7 & 15‑‑Pauper suit‑‑Pauper in event of rejection of his application for permission to sue as pauper making no prayer written or oral either before Additional Registrar or before Single Judge to allow him to pay deficit court‑fee but making such prayer oral as well as written before Supreme Court when his appeal was near to be dismissed as time‑barred‑‑Supreme Court instead of deciding prayer of applicant itself directing High Court to deal with same‑‑Contention that High Court lost seisin of case and could not therefore pass any order on prayer of applicant, held, was not tenable.
Alopi Parashad and others v. Mst. Gappi and others A I R 1937 Lah. 151; Mahadev Gopal v. Bhikaji Vish,ram A I R 1943 Bom. 292; Mathur Singh v. Sudama Debi A I R 1954 Pat. 170; Abdul Aziz Yousfani & Sons v . Haji Ali Muhammad & Co. P L D 1968 Kar. 883; Jagadiswari Debi v. Turkan Bibi A I R 1936 Cal. 28; Chunna Mal v. Bhagwant Kishore A I R 1936 All. 584; Devendar Kumar v. Mahanta Raghuraj A I R 1955 All. 154 and Kalap Nath Singh v . Shyama Nand A I R 1955 All. 159 ref.
(c) Civil Procedure Code (V of 1908)‑‑
‑‑‑S. 149 & O.XXXIII, Rr. 5, 7 & 15‑‑Pauper suit‑‑Payment of deficit court‑fee‑‑Applicant having lost every thing in East Pakistan and shares of company in his possession being only paper documents his application for leave to sue in forma pauperis not appearing mala fide‑‑Applicant allowed time to pay court‑fee and on his payment of court‑fee his pauper application ordered to be registered as a suit for taking further proceedings in accordance with law.
ORDER
The applicant has applied for extension of time by six months to pay the court‑fee. The application is opposed by the defendants very vehemently.
The applicant applied for permission to sue as a pauper. The application was dismissed by the Addl. Registrar (O.S.) by order dated 29‑8‑1977 holding that the applicant is not a pauper. An appeal against the above order of Addl. Registrar (0. S.) also failed before a learned Single Judge of this court who dismissed the same by order dated 5‑11‑1978. A further appeal filed before the Supreme Court against the above order of learned Single Judge met with the same fate when it was dismissed as time‑barred on 1‑2‑1983. However, after dismissal of his appeal before the Supreme Court, but before the order was singed, the appellant prayed before the Court orally that he may be allowed time to pay the court‑fee in the circumstances of the case and this oral prayer was followed by a written application containing similar request. The Court while dismissing the appeal, therefore, made the following observation:‑
"After hearing both the learned counsel (learned counsel for the respondents stated that he has notice and that he is ready to argue) we consider it fit and proper to leave this question for the learned trial court to decide. The petitioner if he chooses to pursue the matter further by making payment of court‑fee, if so advised, may do so by making an application under Order XXXIII, Rule 15 and section 149 C.P.C. before the trial court. The question of limitation in the suit will also be decided by the said court after considering all available pleas to be raised by either side. We, however, remark that this court has concluded the question of application for suing as a pauper without dismissing it on merits. The petitioner has lost the appeal in this behalf, only on ground of limitation."
It is in pursuance of the above observations of the Supreme‑. Court that the applicant has now sought extension of time to pay the court‑fee. The learned counsel for the respondents contends that the Court having once rejected the pauper application on merit cannot subsequent to that allow payment of court‑fee and as such the above observation of the Supreme Court should be construed as having reference to a fresh suit which may be instituted by the plaintiff/ applicant as provided in Rule 15 of order XXXIII. It is also contended that the Court having rejected the pauper application on merits ceased to have jurisdiction in the matter which it could not acquire subsequently because of the observations of the Supreme Court reproduced above. In support of his above, contentions the learned counsel for the respondents has referred to the case of Alopi Parashad and others Vs. Mst.Gappi and others (AIR 1937 Lahore 151); Mahadev Gopal Vs. Bhikaji Vishram (AIR 1943 Bombay 292); Mathur Singh Vs. Sudama Debi (AIR 1954 Patna 170) and Abdul Aziz Yousfani & Sons Vs. Haji Ali Mohammad & Co. (PLD 1968 Karachi 883).
In the 1st referred case of Alopi Prashad the trial court rejected the pauper application but in the end remarked that the plaintiff was at liberty to prosecute the suit on payment of necessary court‑fees. The plaintiff thereafter applied for payment of necessary court‑fee and upon its payment the pauper application was converted and registered into a suit which was finally decreed in favour of plaintiff. In appeal against the decree the learned Judges of the Division Bench of the Lahore High Court took the view that an application to sue as a pauper is a potential plaint. If it is rejected by the Court under Rule 5 or 7 of Order 33 CPC, it never ripens into a plaint but if it is granted it ripens into a plaint and dates back to date of presentation of the pauper application. 11 was also held that if the application to sue as a pauper is rejected, subsequent payment of court‑fee could not revive a potential plaint which ceased to exist when the application was rejected and the only course open to the plaintiff in such circumstances was to file a fresh suit. It was accordingly held in that case that the suit shall be deemed to have been instituted on the date when the court‑fee was paid. The ratio in Alopi Parashad's case seems to be that a simultaneous direction of the court allowing the plaintiff to pay the court‑fee while rejecting the pauper application could not have the effect of deeping the pauper application pending and alive, so as to save the effect of statute of limitation on the suit which is registered after payment of court‑fee. in Mahadev Gopal's case, the Romhay High Court also took the view that when once the court rejects the pauper application without keeping it alive as an unstamped plaint and granting the applicant time to par the requisite court‑fee, the proceedings came. to an end and the court has no power to grant time to plaintiff by a separate and subsequent order to pay the same. The ratio in the Bombay case however, is that it is possible for the court .to allow time to the applicant to pay court‑fee while rejecting a pauper application and in such an event if the applicant pays the court‑fee the suit relates back to the date of institution of pauper application and to this extent the Bombay view is different from Lahore view expressed in Alopi Parashad's case which took the extreme view that the Court while rejecting the pauper application could not simultaneously keep the proceedings alive and allow payment of court‑fee by: the plaintiff so as to. save .the suit from the effect of statute of limitation. The view expressed by Patna High Court in Mathura Singh's case is same as expressed by Bombay `High Court in Mahader Gopal's case. However, the view taken by Calutta High Court in this regard is totally different from Lahore, Bombay And Patna view referred to above. In. the case of Jagadiswari Debi Vs. Turkan Bibi (AIR 1936 Cal. 28), the Calcutta High Court took the view that an application to sue as a pauper under section 33 Rule 2 CPC which contains all the characteristics of plaint in addition to the prayer that the applicant may be allowed to sue as a pauper, is a plaint required to be filed in a suit and the refusal by the Court to grant leave to plaintiff to sue as a pauper only terminates the proceedings in so far it relates to the prayer to grant leave to plaintiff to sue as a pauper and does not amount .to rejection of plaint, which very much remains before the Court as a document on which proper court‑fee is not paid and therefore the Court may under section 149 CPC could come to the assistance of plaintiff and extend the time for payment of court‑fee. All the above noted cases which were decided by the Division Benches of different High Courts in India alongwith several other cases on the point came up for consideration before a Full Bench of Allahabad High Court in the case of Chunna Mal Vs. Bhagwant Kishore (AIR 1936 Allahbad 584) in which the following two questions were referred to the Court for decision: ‑---
"(1) Whether while rejecting the application for permission to sue as a pauper the Court can under section 149 CPC, allow the applicant to pay the requisite court‑fee and treat the application as a plaint.
(2) Whether after rejecting the application for permission to sue as a pauper, can the Court by a separate and subsequent order allow the applicant to pay the requisite court‑fee under section 149 CPC and ‑ treat the application as a plaint.".
The learned Judge of the Full Bench after reviewing exhaustively the case law on the point unanimously disapproved the Calcutta view in Jagadiswari's case that the application under Order 33 Rule 2 CPC from the very beginning is a composite document consisting of a plaint as well as an application for grant of leave to sue as a pauper and therefore while the Court refuses or rejects the application to grant permission to sue as a pauper it does not terminate the plaint which could be dealt with by the Court as an under-stamped document and time could be granted by a separate and subsequent order to the plaintiff to pay the deficit court‑fee. The learned Judges were also unanimous in their opinion that when once the Court rejects the pauper application the proceedings come to an end and thereafter by a separate and subsequent order the Court cannot allow payment of court‑fee, on the pauper application so as to revive it as a plaint and relate it back to the date of institution of the pauper application. There was, however, split in the opinion of the learned Judges of Full Bench on the point that whether the Court while rejecting or refusing the application to sue in forma pauperis, could at the same time permit the applicant to pay the court‑fees on the applications so that the same may be treated as a plaint dating it back to the date of presentation of the pauper application. The two of the learned Judges of Full Bench (Sulaiman, C.J. and Bennet J. ) held the view that if the application to sue as a pauper is rejected under Rule 5 of Order 33 CPC the Court could simultaneously allow the applicant time under section 149 CPC to pay the deficit court‑fee so that the plaint may relate back to the date of filing of pauper application but if the Court refused the application under Rule 7 of Order 33 CPC then the Court could not do so and in that event the only remedy open to the applicant is to file a fresh suit after payment of costs, if any, awarded to Government and the opposite party as provided under Rule 15 of Order 33 CPC. The learned Judge drew a distinction between "rejection" of a pauper application under Rule 5 and its "Refusal" under Rule 7 of Order 33 CPC by the Court and accordingly answered the first question referred to the Full Bench in the affirmative and the second question in the negative. I may also mention here the minority view of Allosp J. in Chunna Malls case as this view found favour with the later two Full Benches of the same Court,. Allosp J. was of the view that whether the Court refuses the application under Rule 7 or rejects it under Rule 5 of Order 33 CPC, in either case, while doing so, it can under section 149 CPC permit the plaintiff to pay the deficit court‑fee and if the court‑fee is paid accordingly the proceedings will be deemed to have commenced on the date of filing of pauper application. The following are the conclusions of Allosp J. in Chunna Malls case:‑‑
"My conclusion is that a Court when it refuses to allow an applicant under 0.33 to sue as a pauper may at the same time give him permission to stamp his application, treat it as a plaint. The point is that we should look to the substantial intention of the Court at the time when it still has jurisdiction under S.149, Civil P.C., and if it means to exercise that jurisdiction before the proceedings came to an end, we should not say that it is incompetent to do so merely because it expresses its intention at the same time not to allow the applicant to sue as a pauper."
I will now refer to the two later decisions of Full Benches of Allahabad High Court reported as Devendra Kumar Vs. Mahanta Raghuraj (AIR 1955 Allahabad 154) and Kalap Nath Singh Vs. Shyama Nand (AIR 1955 Allahabad 159). The Full Bench in Kalap Nath Singh's case was presided over by five learned Judges of that Court and was constituted to reconsider the view of Full Bench expressed in Chunna Malls case which is already referred by me earlier in this order and decision in this case is earlier in point of time than the decision in Devendra Kumar's case. The Full Bench in Kalap Nath Singh's case re‑affirmed the view in Chunna Malls case to the extent that after the Court had rejected or refused the application to sue as a pauper, it looses seisin of the case and the document is no longer before it. Therefore the Court cannot exercise jurisdiction under section 149 CPC and grant time to applicant to pay the deficit court‑fee. However, on the question, that whether the Court while disallowing the application' to sue as a pauper could simultaneously grant time to applicant under section 149 CPC to pay the court‑fee, the Full Bench unanimously resolved as follows:‑
"(6) It often happens that pauper applications, which are contested take some time before final orders can be passed thereon and during this period some times limitation for filing the suit on payment of court‑fees expires. If a bona fide application for leave to sue in forma pauperis has been filed, merely because the petitioner has not been able to prove that he was a pauper on the date of the suit, his claim should not be allowed to get barred and he should be given a chance to pay the court‑fee and continue the proceedings. When, therefore, a Court is not satisfied that the petitioner is a pauper but has no reason to think that the application was not a bona fide one, it should, before it has signed the order disallowing the prayer to be allowed to sue in forma pauperis, grant time for payment of court‑fees. If before signing the order disallowing the prayer to sue in forma pauperis an application, oral or written, has been made to the Court praying that time for payment of court‑fees be granted, it is the duty of the Court to pass a suitable order on that application as part of the order disallowing the prayer to sue in forma pauperis. If by mistake or oversight this has not been done, the Court has jurisdiction to correct its own error by reviewing its previous order rejecting the application and by adding thereto a suitable order dealing with the prayer contained in the application for time. In the case before us, however, no prayer was made and no order granting time was passed at the time when the petition was rejected on 13‑11‑1943, and we have already held that after the pauper application has been finally dismissed there is no jurisdiction in the Court to grant time, several days later, to pay the court‑fee."
In Davendra Kumar Bharti's case which was decided by a Full Bench of Allahabad High Court consisting of three out of the five learned Judges who constituted the Full Bench in Kalap Nath's case, once again the correctness of the majority view of Full Bench in Chunna Malls case came up for consideration. The learned Judges of the Full Bench this time specifically referred the minority view of Allsop, J. in Chuna Malls case and approved the same. The following observations of the Full Bench appearing at page 155 of the report may be reproduced here with advantage‑.‑
(8) We agree with Allsop J.'s decision in‑‑ Chunna Malls case (FB) (A) that once it is admitted that the application for permission to sue in forma pauperis may be converted into a plaint by payment of the court‑fee it must be conceded that this can only be done under the provisions of S.149 of the Code. If S.149 is applicable, there does not seem to be any good reason why the Court should not exercise the discretion given under that section while it is still seized of the application. "
I may mention here that one of the learned Judges (V. Bhargara J.) of the Full Bench which decided Devendra Kumar's case expressed some difficulty on the language of various rules of Order 33 CPC in agreeing with the view that a Court can, when refusing permission to sue as a pauper under Rule 7 (3) grant time to the applicant to pay court fee under section 149 CPC but in the end reach the same conclusion as was arrived at by the other two learned Judges of the Full Bench.
In the light of the above discussion the true legal position in my humble opinion emerges as follows:---------
(1) That a Court while rejecting an application for leave to Sue as a pauper under Rule 5 or refusing the same under Rule 7 (3) of Order 33 CPC, may, if it is satisfied that the application was not mala fide, permit the applicant to make good the deficiency in the court‑fee under section 149 CPC and if the applicant pays the same within the time allowed by the Court, the application will be treated as a plaint and shall be deemed to have been presented on the date of filing of pauper application.
(ii) That where the Court rejects or refuses an application for leave to sue as a pauper, and before the order is signed, the applicant makes either an oral or a written prayer for time to pay the court‑fee, it is the duty of the Court to pass a suitable order on the application as part of the order disallowing the prayer to sue in forma pauperis and if by mistake or inadvertence the Court omits to pass such an order, the Court has the jurisdiction to correct the error by reviewing its own order and by adding thereto such suitable order as may be necessary in the circumstances of the case.
(iii) Where however the court rejects the pauper application or refuses leave to sue in forma pauperis absolutely without allowing any time to applicant to pay the court‑fee under section 149 CPC and no prayer oral or written is made to the Court at the time of passing and signing of the order then the Court cannot by a separate and subsequent order allow time to the applicant under section 149 CPC to pay the court‑fee on the application.
It, therefore, necessarily follows that in order to enable the Court to pass an order under section 149 CPC allowing time to an applicant; whose pauper application is either rejected or refused by the Court to pay the deficit court‑fee on the application, it must be shown that the Court has not lost seisin of the case at the time the A prayer is made by the applicant for time to pay the court‑fee. In the case before me it is an admitted position that the Addl. Registrar (OS) while refusing leave to sue as a pauper to the applicant on 29‑8‑1977 did not allow any time to him to pay the court‑fee on the application under section 149 CPC. If it is also an admitted position that the learned Single Judge who heard the appeal against the order of Addl. Registrar (OS) dated 29‑8‑1977 also did not allow any time to the applicant to pay the court‑fee under section 149 CPC while rejecting the appeal on 5‑11‑1978 and there appears to be no prayer written or oral made either before the Addl. Registrar or before the learned Single Judge by the applicant under section 149 CPC to pay the deficit amount of court‑fee at the time of passing of those orders. However, when the appeal of the applicant before the Supreme Court came up for hearing and was being dismissed as time‑barred, at that time, before the order dismissing the appeal was signed, an oral prayer was made by the applicant to pay the court‑fee and this oral prayer was followed by a written application containing the same B prayer and on that Honourable Supreme Court passed the order which is reproduced in the earlier part of this order. It cannot be doubted that the effect of admission of appeal by the Supreme Court was that the whole matter was re‑opened before it and a prayer having' been made by the applicant before that Court to pay the ‑court‑fee, the same could be granted by the Court. The Supreme Court, however, instead of deciding the aforesaid prayer of the applicant itself directed this Court to deal with the same. In these circumstances, in my humble opinion, it cannot be argued that this Court lost seisin of the case and therefore could not pass any order on the application of applicant under section 149 CPC. I, therefore, overrule the objection of the respondent that this Court has no jurisdiction to pass any order on the application of respondent under section 149 CPC praying y. for time to pay the court‑fee.
M. Y. H. /2497/KOrder accordingly.
0 Comments