Badri Nath L. Tirath Ram and Another vs State of Pepsu and Others

Mehar Singh, J.—This judgment will dispose of two first appeals Nos. 14 and 15 of 1954, in which, though arising out of two separate applications for permission to sue in forma pauperis, the facts, for the purposes of the present appeals, are similar and the questions of law involved are the same.

On 5-6-1952, Badri Nath made an application for permission to sue in forma pauperis for recovery of Rs. 25,000/- from the State of Pepsu, Respondent, and Jagdish Ram made an application also for permission to sue in forma pauperis for recovery of Rs. 2,55,000/- from the State of Pepsu and others, Respondents. The applications were made in the Court of the District Judge of Patiala.

On 15-5-1953, in each case, the trial Judge refused to allow the applicant to sue as a pauper,, thus dismissing his application. In each case, by the same order, he directed the applicant to "pay Court-fee within a month from that date and in the case of Badri Nath ordered that failing that "his suit shall stand dismissed on this score alone" and in the case of Jagdish Ram ordered that failing that "his suit shall be deemed as dismissed on this account alone". Both the cases were adjourned to 16-6-1953.

On 15-6-1953, the cases were taken up by the trial Judge. He found that Court-fee had not been paid in each case and so he rejected the plaint for want of Court-fee stamp. It is against that order, in each case, rejecting the plaint, that the applicant,, who is Appellant in this appeal, has come up in appeal, to this Court.

There is a preliminary objection by the learned Counsel appearing on behalf of Pepsu State, that no appeal is competent because there was no plaint before the trial Judge and these are not cases of rejection of plaints under Order 7 Rule 11, Code of Civil Procedure.

The reply on behalf of the Appellants is that as soon as the trial Judge demanded the payment of Court-fee on the application for permission to sue as a pauper from the Applicant the application became a plaint in a suit and its rejection br non-payment of Court-fee comes directly within the scope of Clause (c) of Rule 11 of Order 7, and that this is so in spite of the fact that by the same order the application was refused.

Order 33, CPC deals with suits by paupers. Rule 2 provides that an application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for signing and verification of pleadings.

It is at once clear that all that is required to be the contents of a plaint is to be stated in such an application. Rule 7 says that the Court shall take evidence of the parties and after hearing arguments shall either allow or refuse to allow the applicant to sue as a pauper.

According to Rule 3 when the 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. And Rule 15 provides that an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the State Government and by the opposite party in opposing the application for leave to sue as a pauper.

The Rules thus provide for two cases (a) when the application is granted and then it is deemed a plaint in the suit and the suit proceeds to start in the ordinary manner, and (b) when there is an order refusing the application and in that case the applicant has been given liberty to institute a suit in the ordinary manner subject to prior payment of costs.

There is a third case, which is not dealt with by the Rules and that is when during the pendency of such an application, the applicant offers to pay Court-fee whereupon the Court accepts the Court-fee and the immediate result is the ending of the application. The third case was considered by their Lordships of the Privy Council in Stuart Skinner v. William Orde 2 All 241 (PC) (A). That was a case under the Code of CPC of 1859. At pages 250 and 251 their Lordships observed:

The Act provides what shall happen if the prayer of the petition be granted by Section 308 (Order 83 Rule 8). It also provides by Section 310 (Order. 33 Rule 15) what shall be the effect of a rejection of the petition. But this case is one which the statute has not in terms provided for. The intention of the statute evidently was that, unless the petition was rejected, as it contained all the materials of the plaint, it should operate as a plaint without the necessity of filing a new one.

Then what are the facts in this case? The petition is filed, and proceedings are taken to inquire into the pauperism, which are delayed by various orders of the Court, after the Plaintiff had been already bandied about from one Court to another until a very considerable period of time has elapsed. Then, pending that inquiry, the Plaintiff by paying the amount of stamp fees into Court admits that he is no longer desirous to sue as a pauper, and gives up so much of the prayer of his petition as asks to be allowed so to sue, but no more.

The Defendant, so far from being a sufferer by that change, is benefited, as both parties will go on with the litigation on equal terms. Is there, then any thing in the Act which requires that in such a state of things the petition of plaint shall be rejected altogether, and the Plaintiff be compelled to commence de novo? Their Lordships do not see their way to the middle course followed by the Court in holding that the petition was converted into a plaint from the date of the payment of the fees.

To be logical, the Court should have rejected it altogether. The petition of plaint was placed upon the file and numbered on 19-7-1373, and this is the plaint that is allowed to go on. Although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in the Indian Courts, that a wrong stamp is put upon the plaint originally, and the proper stamp is afterwards affixed. The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it.

This case, which is not provided for by the Act, approached more nearly to the state of things contemplated by Section 308 (Order 33 Rule 8) than that contemplated by Section 310 (Order 33 Rule 15). There are no negative words in the Act requiring the rejection of the plaint under circumstances like the present, nor anything in its enactments which would oblige their Lordships to say that this petition, which contains all the requisites which the statute requires for a plaint, should not, when the money has been paid for the fees, be considered as a plaint from the date that it was filed. It is obvious that very great injustice might be done if this were not to be the practice.

In that case when the payment; of Court-fee was accepted during the pendency of the application and the case proceeded as a suit in the ordinary way upon such payment, the application to sue as a pauper, of course, immediately came to an end and stood, rejected. The question is whether there is any difference in a case of that type as compared to the present cases in which by one and the same order the Court has refused to allow the application and given time to the applicant to pay the Court-fee on the plaint?

It has been pointed out that that was a case under the Code of 1859 and in that Code there was no provision like Section 149 of the present Code. Under that section the Court has discretion to allow payment of Court-fee even after filing of the document, and it is in pursuance of that section that the trial Judge in these cases gave time to the applicants to pay in Court-fee on the plaints.

In substance there appears to be no difference between the case that was before the Privy Council and the present cases, for in either the application came to an end and the applicant was allowed to continue the application operating as a plaint on payment of requisite Court-fee. However, in Chunna Mal Vs. Bhagwant Kishore, Sulaiman C. J. and Bennet J. have taken the view that though the law with regard to the cases as was the case before the Privy Council is as laid down by the Privy Council, but the cases of the type as the present two cases are on a different footing and in such cases when the application is refused, the only course open to the applicant is to move according to Order 33 Rule 15.

With this view the third learned Judge, Allsop J., has not agreed and in his opinion there is no substantial difference between the two type of cases. But the majority view in that case has now been dissented from in another Full Bench case of the same Court reported as Devendar Kumar Bharti Vs. Mahanta Raghuraj Bharti and Others, in which the learned Judges have come to agree with the opinion of the dissenting Judge in the previous Full Bench case.

Even in Kalap Nath Singh and Another Vs. Shyama Nand and Others, there is support for the opinion of the dissenting Judge in the previous Full Bench case. So that there is no substantial difference between the two types of cases, that is, one that was before the Privy Council and the present cases. There are some reported cases, upon which reliance has been placed by the learned Counsel for the State, which say that an application for permission to sue as a pauper cannot be treated as a plaint at any stage and in any circumstances, but that view is obviously inconsistent and opposed to the dictum of their Lordships of the Privy Council and so it cannot prevail.

There is ample authority for the view that when the Court refuses an application for-permission to sue as a pauper and allows the applicant u/s 149 to pay the Court-fee within a certain period of time, on payment of the Court-fee, the application operates as a plaint from the date of its institution, and not from the date of payment of Court-fee. It is not necessary to cite the numerous cases in support of this view and a considerable number of them have been collected and referred to in the judgments of Panigrahi and Narasimham JJ. in Mt. Jinatun Nisa Bibi and Another Vs. Mt. Idrakun Nisa and Others,

There are also cases taking the same view even after 1950. Once it is conceded that u/s 149 time can be given to such an applicant, to pay Court fee, then such a case cannot come within the ambit of Order 33 Rule 15, but the application must operate as a plaint not from the date of payment or Court-fee, but from the date of its invitation. This, to my mind, is inherent in the provisions of Section 149 which provides:

Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

It is immediately clear from the words of the section that the document must be pending in the Court and it must be pending as a document, of that nature, upon which the fee demanded is payable under the law, in other words, if the fee demanded is that payable on a plaint in a suit, the document pending in the Court must be a plaint in the suit and no other document, otherwise the fee would not be demanded on a plaint but on a document of, some other kind and the fee as demanded would not be payable on a document of the other kind.

The other matter that is clear from the words of the section is that once the fee is paid the document, as the type of document upon which the fee has actually been demanded, has force and effect as if the fee had been paid in the first instance when the document was filed in Court. So that once it is conceded that u/s 149 the Court can in cases of the present type exercise discretion in favour of an applicant and allow him time to pay up the Court-fee, it follows that it exercises discretion in his favour in regard to a pending plaint and no other type of document.

It may be noticed that when such a discretion is exercised in his favour, the prayer for permission to sue as a pauper stands refused. Thus the only document that remains with the Court is obviously a plaint of the applicant and nothing else. The question what is the effect of payment or nonpayment of the fee, for which time has been allowed, is a different matter, but what is being emphasised here is that immediately u/s 149 the application takes the shape of a plaint before the Court.

It is clear both from the words of this section and the dictum of their Lordships of the Privy Council that if the Court-fee is paid, the plaint takes its date from the original institution of the application for permission to sue as a pauper, but what is contended is that if no Court-fee is paid within the time allowed by the Court, it is then not a rejection of a plaint, but a dismissal of the original application for permission to sue as a pauper.

It is, however, forgotten that that application had been dismissed long before the applicant failed to pay the Court-lee under the order of the Court u/s 149 and there cannot be a second dismissal of such an application. On any consideration, I have not the least doubt that what is then rejected, upon failure of the applicant to pay the Court fee, according to Section 149, in such circumstances, is a plaint, and no other document. In the present cases, therefore, what was rejected by the trial Judge on 15-6-1953, were the plaints of the Appellants.

Now, there is some difficulty in applying Order 7 Rule 11 to the rejection of a, plaint as in these cases. Sulaiman C.J. has in Chunna Mal Vs. Bhagwant Kishore, pointed out some difficulty of the application of that Rule in cases of the present type, but, apart from that, the difficulty that I feel is that arising out of the words of Clause (c) of this Rule. Order 7 Rule 11 (c) provides:

The plaint shall be rejected in the following cases:

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the Plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so:

The clause refers to a plaint on an insufficiently stamped paper, which apparently means that there must be some stamp on the plaint and a case in which there is no stamp on the plaint cannot be within the scope of the clause. This appears to me to be quite plain upon the words of the clause.

There is support for this view in AIR 1930 224 (Nagpur) in which the learned Judge observed "that Order 7 Rule 11 does not refer to a plaint which bears no stamp." The present cases do not fall within the scope of Order 7 Rule 11 and to an extent, therefore, the contention of the learned Counsel for the State is correct, but I am not prepared to go with him as far to say that these are not cases of rejection of plaints. It has been shown that they are such cases.

The rejection of a plaint is within the definition of a "decree" within the scope of Section 2(2), Code of Civil Procedure. The reference to "the rejection of a plaint" in that definition is not confined to rejection of a plaint under Order 7 Rule 11, and that is clear from the very words of Section 2(2), for otherwise there would have been reference to Order 7 Rule 11 in it. In Harihar Bakhsh Singh v. Jagannath Singh AIR 1924 Oudh 413 (G), it has been held that,

the grounds on which a Court is authorised to reject a plaint are not only those given in Order 7 Rule 11, Code of Civil Procedure. The instances given in the rule cannot be regarded as exhaustive or as limiting the powers of a Court u/s 151 of the same Code.

Consequently the order rejecting the plaint in each one of these cases is a decree within the scope of Section 2(2), Civil P.C. and an appeal from such a decree is competent. But even if it was not technically considered a rejection of a plaint but dismissal of a suit, even so, it will be a decree, and an appeal would be competent. The preliminary objection on behalf of the Respondent fails.

The learned Counsel for the Appellants contends that the Appellants were given time on 16-5- 1953, to pay Court-fee within a month from that date and the cases were adjourned to 16-6-1953. Without notice to the Appellants and in their absence the cases were taken up on 15-6-1953 and the plaints were rejected. His position is that the cases having been taken up not on the date to which they were adjourned, but a day earner, the orders of the trial Judge are without jurisdiction.

The learned Counsel for the State replies (a) that in the order of 15-5-1953, the trial Judge had clearly stated that in the event of non-payment of Court-fee the suits shall stand dismissed and no fresh order was necessary on 15-6-1953, rejecting the plaints but that the same stood dismissed on that date, (b) that one month having been allowed for payment of Court-fee from 15-5-1953, the time expired by 14-6-1953, and the trial Judge was justified in rejecting the plaints on the next day, and (c) that this ground, which has been taken during the arguments, has not been taken in the grounds of appeal and cannot be permitted to be taken for the first time in appeal.

It is true that the ground that has been urged at the time of arguments against the orders, of the trial Judge has not been taken in the grounds of appeal, but the material upon which it is based is patent on the records of the cases and no further inquiry or evidence is required to support it. In such circumstances we do not see why a ground like this, supported by the record as such, cannot be allowed to be taken in appeal,'' and we have allowed the ground to be taken and argument to be based upon it.

The learned Counsel for the State has not been able to refer to any reported case inconsistent with the course that we have adopted, but Rai Singh v. Man Singh AIR 1933 Lah 738 (H); Annappa Ramchandra Pai Vs. Krishna Narayan Prasad, Shib Singh Vs. Mt. Gaura, and Attorney General of the Colony of Fiji v. J.P. Bayly Ltd AIR 1950 PC 73 (K)favour the adoption of such a course. This objection has no force.

The orders of 15-5-1953. say that payment of Court-fee was allowed within a month from that date. ''The question is whether in computing time of one month 15-5-1953, the day of the order from which time was to be reckoned, is or is not to be excluded, and, I am of the opinion, that the consideration of the matter must proceed upon the principle underlying Section 9. General Clauses Act of 1897 which provides that in any Central Act or Regulation made after the commencement of that Act, it shall be sufficient, for the purpose of excluding the last in a series of days or any other period of time, to use the word "to'' (sic).

So that upon the principle underlying that section in the present cases the day on which the orders were made., that is, 15-5-1953, has to be excluded: Gopal Lal v. Bahorni 13 Ind Cas 900 (Cal) (L)and Ramchandra Govind Unavne Vs. Laxman Savleram Ronghe, The result is that the last date for payment of Court-fee for each one of the Appellants in these cases was 15-6-1953.

It has already been pointed out that the cases were adjourned to 16-6-1953. The trial Judge had ordered that if the Court-fee was not paid within a month the suit was to stand dismissed at the end of the time, and that means that the suit was to stand dismissed on 15-6-1953. But the Appellants were entitled to the whole of that day to make, payment of the Court-fee and they had every right to make such a payment at the last minute of the rising time of the Court.

Counsel on neither side is able to say at what time the orders were passed by the trial Judge rejecting the plaints and we cannot presume that the orders were passed at the last minute as the Court was rising at the end of the day. If anything it appears that the cases were placed before the trial Judge as the Court-fee had not been paid and as the counsel for the parties happened to be in Court, he enquired from them about the payment of Court-fee, and in each case the counsel, who was the same gentleman, for the Appellant informed the Court that a revision against its order refusing the application for permission to sue as a pauper had been filed by the Appellant in the High Court.

Thereupon, the trial Judge rejected the plaints. As pointed out it does not appear that the rejection was at the close of the day and as the Appellants had the right to put in Court-fee even at the last moment, the orders of the trial Judge in rejecting the plaints before that time are apparently bad in law.

The presence of the counsel for the Appellants in the Court at the time of orders makes no difference because he was not present in these cases as they had been adjourned not to the day on which the orders were passed but to 16.6.1953. So that the orders were passed in the absence of the Appellants and without notice to them that they were being passed before the time within which they could pay up the Court-fee had expired.

In Nand Lal v. Dit Raj 37 P&H 1904 (N)what happened was that the Court was on tour and the suit was taken up and dismissed without notice of time and place of hearing having been given to the parties and Robertson J. held that the order dismissing the suit must be set aside as without jurisdiction.

Thus even if the argument of the learned Counsel for the State is acceded to that the plaints stood rejected and the suits dismissed on 15-6-1953, according to the previous orders of the trial Judge, without the necessity of fresh orders, the trial Judge intervened before the operation of the previous orders could have its final effect, and proceeded to reject the plaints at the back of the Appellants and without notice to them. The order of the learned trial Judge rejecting the plaint in each case is, therefore, bad in law and without jurisdiction. It cannot be maintained.

In the view that has been taken above, even if the argument of the learned Counsel for the State that no appeal is competent against the orders of the trial Judge is acceded to, this Court can interfere, in the interests of justice, in these circumstances, u/s 115, Code of Civil Procedure. because the orders of the trial Judge are without jurisdiction.

In consequence, both the appeals are accepted, the orders of 15-6-1953, of the trial Judge are set aside, and the cases are remitted to the Court of the District Judge of Patiala for disposal according to law, but, in the circumstances of the cases we allow each one of the Appellants to put in Court- fee requisite on the plaint in the Court of the District Judge of Patiala on or before 5-10-1956.

In view of Section 13, Court-fees Act, Court-fee paid by each Appellant in his appeal in this Court shall be refunded to him In the circumstance of the cases there is no order as regards costs. The parties are, through their counsel, directed to appear in the trial Court on 5-10-1956.

Gurnam Singh, J.

I agree.