Narsingh Das Kundanlal vs Rati Ram Gupta

This is a revision petition .against the order dated 5-11-1954 of the District Judge, Secunderabad, dismissing the review application on the ground that it did not lie in law. It would appear that the Petitioner instituted a suit in forma pauperis. After due inquiry, the learned trial Judge, by his order of 11-2-1954 refused to allow the Petitioner to sue as a pauper, and subsequently rejected the plaint on 30-3-1954 by reason of the fact that the, Petitioner did not make good the requisite court-fee within the time allowed by the Court.

The Petitioner alleging mistake or error on the face of the record and discovery of fresh documentary evidence filed an application on 5-6-1954 for reviewing the order refusing to allow the Petitioner to sue as a pauper. The non-applicant resisted the application inter alia on the ground that the CPC did not provide review of judgment passed in a pauper petition.

The learned Judge acceded to the plea raised on behalf of the non-applicant and basing his judgment on a decision of Mack J. reported in - Nalliboyina Ganga Bhavanamma and Others Vs. Kethu Surayya and Another, (A) dismissed the Review application. It is this order which was strenuously challenged before us by the learned advocate for the Petitioner. He relied on - ''Adarji Edulji v. Manikji Edulji 4 Bom 414 (B) and - ''Ranchod Morar v. Besanji Edulji 20 Bom 86 (C).

In the first case Marriot J. held that an order made u/s 409, CPC (Act 10 of 1877) refusing leave to sue as a pauper, is subject to review u/s 623. The provisions of Section 413 (corresponding to Rule 15, Order 33, Indian Penal Code do not affect the right of the person against whom such order has been made to obtain a review. In the second case there is a passing reference to the first case with the remark that a refusal, to allow has been held open to review.

In the Madras case which was relied upon by the Court below and which was also referred to us by the learned advocate for the non-applicant, the facts were that an application to sue as a pauper though rejected on 23-6-1945, was ultimately dismissed on 21-7-1945 because court-fee was not paid though the Petitioner was given more than one extension of time within which the requisite court-fee ought to have been paid.

This was subsequently reviewed on an application under Order 47, Rule 1, Indian CPC on the Petitioner paying half the court-fee on the review petition and full court-fee on the plaint. In revision Mack J. held that none of the conditions mentioned in Order 47, Rule 1 were present in the case. The order of dismissal as passed in the case was really not contemplated by the Code, and as the review application could not be brought within the scope of Order 47, Rule 1 it was not maintainable.

The reason for that view would appear to be that extension of time for payment of court-fee u/s 149, CPC was not within the contemplation of the Code and, therefore, the deficiency in the court-fee cannot be made good through an application for review.

The normal procedure open to an unsuccessful pauper applicant is to institute a suit in the ordinary manner as prescribed by Rule 15 of Order 33, because on the refusal of an application for leave to sue as a pauper, the proceedings are completely disposed and, therefore, the Court had no power to allow the court-fee to be paid u/s 149, for the simple reason that Section 149 is inapplicable when there are no proceedings actually before the Court.

In our opinion, the Madras case cannot be taken to have laid down that in no case can an order refusing to allow the applicant to sue as a pauper be the subject of a review application. Section 114, Code of Civil Procedure, which is a substantive provision, inter alia, provides that any person considering himself aggrieved by a decree or order from which no appeal is allowed by the Code may apply for a review of the judgment of tile Court, subject of course to the limitation prescribed in Order 47, Rule 1.

A refusal to allow the applicant to sue as a pauper under Sub-rule 3 of Rule 7 of Order 33 is unquestionably an order of the Court under the Code and, having regard to the provision''s of Section 114 subject to the conditions laid down in Order 47 Rule 1, can validly form the subject of a review application. There is nothing in Rule 15 of Order 33 which can be said to be a bar to the maintainability of a review application.

That rule provides that an order refusing to allow the applicant 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 he first pays the costs (if any) incurred by the State Government or by the opposite party in opposing his application for leave to sue as a pauper.

A plain reading of the rule would show that the rule provides that an order refusing an application to sue in ''forma pauperis'' will only be a bar to a similar subsequent application and not to any other remedy which may be open to the applicant under the Code. And again the liberty to institute a suit in the ordinary manner would not by any stretch of imagination import in the rule a prohibition against the maintainability of a review application.

A close study of ''Bhavanamma''s case (A)'' shows that the revision was accepted on the ground that the review application in the Court below did not satisfy the conditions of Order 47, Rule 1 and not that no review application in law lay. As a matter of fact there is no conflict between the Bombay and Madras view. In our opinion, the review petition filed by the Petitioner was maintainable and there was no legal bee to its being entertained.

But there is another point to be canvassed. The learned District Judge has refused to entertain the review application on the further ground that he has rejected the plaint for non-compliance of the order under Clause (c) of Order 7, Rule 11. CPC That order amounted to a decree and not having been appealed against had become final. This fact according to him left the Petitioner with a remedy by way of regular suit.

No doubt, a plaint can be rejected under Order 7, Rule 11 but to attract the provisions of that rule, the proceeding must have been started with the presentation of a plaint. The provisions of Rule 13 also emphasise that aspect. It provides that the rejection of the plaint on any of the grounds mentioned in Order 7, Rule 11 shall not of its force preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action. But suits in ''forma pauperis'' are not commenced with a plaint.

This is obvious from the provisions of Rule 2 of Order 33. That rule provides that every application for permission to sue as a pauper shall contain the particulars in regard to plaints in suits. The mere fact that an application under Rule 2 is required to embody particulars prescribed in Rule 1 of Order 7 would not ''ex proprio vigore'' render the application a plaint.

It is only when the application survives the ordeal of rejection and refusal under Rules 5 and 7 of Order 33 and is granted, it becomes a plaint in the suit under Rule 8 and it proceeds in all other respects as a suit instituted in the ordinary manner except that the plaint shall not be liable to 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.

In the case of ''District Official Receiver, Amritsar v. Firm Sohanlal Ramjidas AIR 1940 Lah 446 (D) it was contended that an application for permission to sue in ''forma pauperis'' was a plaint coming within Order 7, Rule 11; therefore, the Subordinate Court was bound to give time for payment of the fees.

Young, C.J. who delivered the judgment of the Court repelled the contention and held that in the first place Order 7, Rule 11 does not apply to an application for permission to sue in ''forma pauperis''. Such an application is specifically dealt with by Order 33, Rule 8. This provision of the CPC makes it clear that an application for permission to sue in forma pauperis'' is only deemed to be a plaint in the suit when the application is granted.

The application in the present case has never been granted and, therefore, Order 7, Rule 11 did nut apply and for the matter of that no order came into existence which could be deemed to be included in the definition of decree. It is significant that the learned District Judge does not refer to Rule 13 of Order 7 but directs the Petitioner to institute a suit in the ordinary manner in respect of relief claimed by him.

For these reasons we allow the revision and setting aside the order dated 5-11-1954, remand the review application to be dealt with according to law. The costs of the revision petition will be borne by the non-applicant.