Nedumbullithodiyil Govinda Pathiyar vs Ananthanarayana Iyer and Nineteen Ors.

Govinda Menon, J.—Original Petition No. 21 of 1950 on the file of the Court of the Subordinate Judge of Ottapalam was an application by

the present Appellant under Order XXXIII, Rule 1, Code of Civil Procedure, to allow him to sue in forma pauperis for the grant of the various

reliefs claimed therein, viz., a decree in his favour on behalf of his tarwad, for redemption and recovery of possession of the properties from

Respondents 1 and 2, future mesne profits at the rate of 1,200 paras of paddy from the first Respondent and also other reliefs. On objections put

forward by Respondents 1 aud 2, the learned Subordinate Judge proceeded to act under Rules 6 and 7 of Order XXXIII, and after examining the

Petitioner and hearing the Respondents'' Counsel on the points urged, held that it has not been shown that the Petitioner is not possessed of

sufficient means to enable him to pay the court-fee prescribed by law for the plaint, and further that the allegations in the petition do not show a

cause of action. On both these grounds he came to the conclusion that the petition was not maintainable, but gave the Petitioner a period of two

weeks from 19th November 1951, for payment of the requisite court-fee, adjourning the petition to 8th December 1951. The Petitioner did not

comply with the order to pay the court-fee and, therefore, his application was dismissed. Thereafter, on 25th December 1952, the present appeal

has been filed under Order XLIII, Rule 1(nn). The appeal has been referred to a bench on a preliminary objection raised by the Respondents that

the same is incompetent inasmuch as the rejection of the petition for leave to sue as pauper amounts to a rejection of a plaint, as contemplated in

Section 2(2) from which an appeal lies; and since no proceedings have been taken in that regard, the present appeal is unsustainable. The learned

Judge, before whom the appeal came up in the first instance, was of the opinion that there is a conflict between two decisions of this Court,

Bommisetty Ramayamma In re (1954) 1 M.L.J. 544, and Munian v. Kesava Pandithan (1954) 68 L.W. 222, to which one of us, Basheer Ahmed

Sayeed, J., was party, and it is on this ground that the appeal comes before us.

Before dealing with the conflict of decisions, it is necessary to remark that there is one vital distinction between the facts of those cases and what

obtain here, namely, that both those decisions were given in civil revision petitions, which were preferred against orders refusing leave to sue as a

pauper on the ground that the applicant was not a pauper, from which order no appeal is provided. But where the application is rejected on the

ground that the allegations do not a show cause of action, an appeal is provided Under Order XLIII, Rule 1(nn), and it is difficult to see how such

an appeal can be refused a hearing on account of a circumstance, which has taken place subsequently. It may also be mentioned that Order

XXXIII does not specifically provide for the granting of time to pay the requisite court-fee, for there is no rule which states in so many terms, that

where the Court rejects an application for permission to sue as a pauper under Rule 5 of Order XXXIII or under Rule 7, the Court is bound to

grant time to the Petitioner to pay the court-fee for obtaining the reliefs mentioned in the application. This is done under the provisions of Section

149 of the Code with a view to obviate unnecessary proceedings. Order XXXIII, 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 a like nature by him in respect of the same right to sue, that is, when once an

application to sue in forma pauperis is rejected, on the same cause of action it is not open to the applicant to resort to another application in forma

pauperis. But it also provides that the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such a right provided he first

pays the costs, if any, incurred by the Government and by the party opposing such application to sue as a pauper. It is, therefore, clear from this

rule that there is nothing prohibiting a pauper applicant, whose application for leave to sue has been rejected, from taking back the paper on which

that application has been made, and re-presenting it, after payment of the requisite court-fee, as a regular suit, if he conforms to the conditions

mentioned in the last part of the rule by paying the costs to the Government and the opposite party. Under these circumstances, it seems to us,

apart from any authority, that the permission given by the Court to pay court-fee and convert the application into a suit would not take away from

the applicant his right to institute a suit. Understood in this light we are of the opinion that there could be no objection to the appeal being heard.

The learned Counsel for the Respondents, who takes objection to the hearing of the appeal, relies upon Rangachariar v. Rangaswami Ayyangar

(1935) ILR 59 Mad. 777, and Chockalinga Thevar v. Sankarappa Naicker (1942) 1 M.L.J. 281, wherein it has been held that pending an appeal

against a decision of a trial Court, if the same subject-matter is finally decided by another Court, then the appeal cannot be proceeded with on the

ground of the bar of res judicata. From this analogy it is argued that since the rejection of an application for leave to sue in forma pauperis for non-

payment of the court-fee within the time allowed by the Court amounts to a rejection of a plaint, which is a decree u/s 2(2) of the CPC and there is

no appeal against that order, it is incompetent for the aggrieved party to proceed with the appeal. We are not able to find any resemblance

between these cases and the present one. For one thing the Code does not provide an appeal against the rejection of an application for leave to

sue in forma pauperis for default of payment of court-fee, and no case has been brought to our notice, where such an appeal has been entertained,

though in Kanthimathi Ammal v. Ganesa Iyer (1935) ILR 59 Mad. 805, Wadsworth, J., held that a second appeal lies against an order of an

appellate Court refusing leave to appeal in forma pauperis, on the ground that the refusal to permit the appeal is tantamount to the confirmation of

the decree of the trial Court, in which case a second appeal lies to the High Court. In the present case under Order XXXIII, Rule 15, it is open to

the Petitioner to file a fresh suit when his application for leave to sue has been rejected. Moreover it has been held by a recent Full Bench of the

Andhra High Court in In re Subrahmanyam AIR 1955 Andhra 74 (F.B.), that if pending a pauper suit the pauper-Plaintiff is dispaupered and

directed to pay the requisite court-fee, which he fails to do, and the suit is dismissed for default of payment o� court-fee, such an order does not

fall within the ambit of Section 2(2) of the Code of Civil Procedure, and is not appealable, because the dismissal under Order XXXIII, Rule 11,

being one which is excluded from the definition of ''decree'', no appeal can lie against that order. In our view, the reasoning of the learned Judges of

the Andhra High Court can be usefully followed for the decision of this point, for, if after the pauper application has been registered as a suit and

the Plaintiff is dispaupered, the dismissal of a suit for non-payment of court-fee is not a decree, all the more is the rejection of an application for

leave to sue in forma pauperis for non-payment of court-fee is a dismissal for default; against which no appeal lies. If, therefore, no appeal lies

against such an order no question of res judicata arises and the present appeal preferred under Order XLIII, Rule 1(nn) is perfectly competent.

Another way of looking at the question is afforded by the reasoning contained in the decision of a Bench of this Court in Venkatarama Ayyar v.

Unnamalai Ammal (1951) 1 M.L.J. 474, where the learned Judges held that notwithstanding the fact that after an order of remand the suit was

disposed of, the party aggrieved by the order of remand would have a right of appeal against the order of remand. There were conflicting decisions

on the point, one by Mack, J., in Venkatarama Ayyar v. Unnamalai Ammal (1948) 7 M.L.J. 404, where the learned Judge held that pending an

appeal against an order of remand, if the suit itself after remand has been disposed of, then it is incompetent for the Appellant in the appeal against

the remand order to proceed with his appeal, if he has not filed an appeal against the final disposal of the suit. Viswanatha Sastri, J., took a

different view in Kanakayya v. Lakshmayya (1950) 2 M.L.J. 379, disagreeing with the reasoning and conclusion of Mack, J. He was of opinion

that where in a suit an order of remand was passed and it was carried out and the suit decided, the remedy can also be by an appeal against the

order of remand and not merely by way of appeal against the final decision of the suit. u/s 105, Clause (2), Code of Civil Procedure, if a person

aggrieved by an order of remand, against which an appeal lies, does not take advantage of that remedy, it is incompetent for him to appeal from

the final decree disputing the correctness of the order of remand. That being the case, as the learned Judge held, the appeal against an order of

remand cannot be stifled by the latter proceedings. The Bench in Venkatarama Ayyar v. Unnamalai Ammal (1951) 1 M.L.J. 474, followed in its

entirety the reasoning and conclusion of Viswanatha Sastri, J. On a parity of reasoning, it is clear that there can be no impediment to the hearing of

the present appeal for more reasons than one. Firstly, in our opinion, the order of rejection for non-payment of court-fee is not appealable and

there is a remedy to the applicant by way of suit. Even if that order is appealable, still since the two remedies flow from independent rights, the

exercise of one such right is no bar to the exercise of another. The aggrieved party is not faced with alternative remedies. He has not lost the right

to have an appeal against the order holding that the plaint does not show a cause of action, because for non-payment of court-fee the application

has been rejected. Moreover, the rejection for non-payment of court-fee is a consequential one following from the non-compliance of a basic

order and if the basis goes, the consequence also disappears.

The learned Counsel for the Respondents relies upon a number of cases to the effect that since an application for leave to sue as a pauper is a

composite document containing not only the prayer for being permitted to sue as a pauper but also all the ingredients and essential requisities for a

plaint, the rejection of such a document would amount to the rejection of the plaint, and if such an order is not vacated, an appeal against an

intermediate one is unsustainable. In Balaguru Naidu v. Muthuratnam Aiyar (1923) 46 M.L.J. 254, Krishnan, J., held that a pauper application is a

combination of a plaint and an application to excuse the payment of court-fee. When the petition is dismissed on any ground, it is only the

application that fails. The plaint, however, remains and may be validated by payment of court-fee within a time to be fixed by Court, if the Court in

the exercise of its discretion is prepared to grant time. When, within the time granted for payment of court-fee, the same is paid, the plaint must be

taken as filed on the day it was originally put into Court along with the pauper application. The learned Judge follows the well known Privy Council

decision in Stuart Skinner alias Nawab Mirza v. William Orde (1879) ILR 2 All. 241 (P.C.). There is nothing in this decision to hold that if the

application is rejected for non-payment of court-fee, then the order is tantamount to a decree against which an appeal lies; or, if any revision had

been filed against an intermediate order holding that the Petitioner is not a pauper, then such a revision is incompetent after the application has been

ultimately rejected. In Mahadev Gopal Savant Vs. Bhikaji Vishram Chavan, , Broomfield and Lokur, JJ., were also of the opinion that there is a

combination of a plaint and a petition for leave to sue in forma pauperis in an application under Order XXXIII, Rule 1 and the learned Judges held

that when such an application is registered as a plaint after payment of court-fee, then it should be deemed as if the plaint was instituted on the date

when the application for leave to sue was made. But when once the Court passes an order rejecting an application under Rule 5, or refusing to

allow the applicant to sue as a pauper under Rule 7 without keeping the application alive as an unstamped plaint and granting the applicant time to

pay the requisite court-fee, the proceedings come to an end and it has no power, by a separate or subsequent order to direct the payment of

court-fee. In such a case, the only remedy for the applicant is to file a suit under Order XXXIII, Rule 15. In that case, for the purpose of limitation,

the suit must be taken as instituted on the date it is actually filed, but the Plaintiff cannot avail himself of the time spent in the pauper proceedings to

save the bar of limitation. We do not see any observations in these two cases which prevent the hearing of the present appeal.

Great reliance is placed on a judgment of Yahya Ali, J., in Periyasami Padayachi v. Minor Ulaganathan (1948) 2 M.L.J. 150, wherein there are

observations to the effect that an application for leave to sue in forma pauperis embodies a petition as well as a plaint, and is for all practical

purposes to be treated as a plaint with the result that interlocutory reliefs could be granted as if it were a plaint and as if the parties to the

application were parties to a suit, in which case the provisions of Section 141 could be availed of. It cannot be disputed that the application

contains the ingredients and elements of a plaint, but as we have already remarked, if its rejection for non-payment of court-fee is not appealable,

there is no insurmountable bar against the party seeking other reliefs, as one under Order XXXIII, Rule 15 or anything, from proceeding with an

appeal filed under Order XLIII, Rule 1(nn). No question of res judicata can arise. For one thing if the earlier appeals succeed, then the subsequent

decision based upon the vacated order is automatically dissolved and no binding pronouncement can exist. The learned Judge has no doubt relied

upon the observations of Krishnan, J., in Balaguru Naidu v. Muthuratnam Aiyar (1923) 46 M.L.J. 254, and of Gentle, J., in Chidambaram v.

Nataraja Mudaliar ILR (1938) Mad. 1060, for holding that there is a combination of a plaint and an application to excuse the payment of court-fee

in a petition for leave to sue in forma pauperis and also that on the presentation of a petition for leave to sue in forma pauperis, if the same is

allowed, the suit should be deemed to have been instituted on that date. Decisions of other High Courts to the same effect have also been

discussed; but it is difficult for us to find any observations analogous to the subject-matter of controversy. Leach, C.J., and Lakshmana Rao, J., in

Brahmaramba v. Seetharamayya (1947) 1 M.L.J. 119, took the view that an application for leave to sue in forma pauperis embodies a plaint and if

the applicant dies during the pendency, his legal representatives are entitled to be brought on record and to continue the suit on payment of the

requisite court-fee. Limitation for the suit must be deemed to have stopped on the date when the application for leave to sue in forma pauperis was

filed. The learned Chief Justice referred to the observations of Sir Montague E, Smith in Stuart Skinner alias Nawab Mirza v. William Orde (1879)

ILR 2 All. 241 (P.C.), and also the provisions of Order XXXIII, Rule 15, which allows the pauper, whose prayer to sue in that capacity has been

refused, to invoke the aid of the Court like any other ordinary citizen by payment of proper court-fee if he complies with the conditions mentioned

therein. In none of these cases is any principle discussed or decided that the rejection of an application in forma pauperis on the ground of default

of payment of court-fee prevents the applicant from proceeding with an earlier appeal or revision questioning the conclusion about his pauperism or

about the absence of cause of action in the embryo plaint. In these circumstances, the principle laid down in Chockalinga Thevar v. Sankarappa

Naicker (1942) 1 M.L.J. 281, that where, during the pendency of an appeal against the finding in a suit, the same issue had been raised and

decided differently in another suit in the same Court and such a later decision had been allowed to become final, it will operate as res judicata in the

appeal against the earlier decision, has no application to the present case.

We are unable to find that the Full Bench decision in Satyanarayana v. Ramalingam ILR (1952) Mad. 77 (F.B.), is in any way against the

hearing of the appeal. That decision arose out of a regular suit filed after paying court-fee where it was found that what was originally paid was

insufficient. Thereupon, an order was made directing the payment of additional court-fee, which order was not complied with. The result was that

the plaint was rejected. A revision was filed against the order rejecting the plaint in which the Full Bench held that as an appeal was competent a

revision is not maintainable. Under those circumstances, the Frill Bench held that the remedy of the aggrieved party was to file an appeal against the

rejection of the plaint and not to proceed with the revision. Admittedly the rejection of a plaint under those circumstances is one under Order VII,

Rule 11, Code of Civil Procedure, and is appealable unlike the present case where, as we have held, no appeal lies against the dismissal of the

application for non-payment of court-fee. We find it difficult to agree with the observations of Panchapakesa Ayyar, J., in Bommisetti

Ramayamma, In re (1954) 1 M.L.J. 544, that any party who is aggrieved by an order calling for additional court-fee should at once take a copy of

that order and file a revision to the High Court and get a stay if he does not want to pay the additional court-fee and only wants time to file a

revision. Firstly the remedy by way of revision is a very discretionary one and a party has no vested right in revision like a right of appeal. So no

person can be blamed for not invoking the provisions of Section 115, Code of Civil Procedure, when he has a right of appeal on a final decision.

The High Court is not compelled to hear a revision whereas when an appeal comes before it a statutory duty is cast upon it to hear it. Such being

the case, we do not think that the facts of the Full Bench can be applied here.

On the contrary, the conclusion arrived at by one of us, Basheer Ahmed Sayeed, J., in Munian v. Kesava Pandithan (1954) 68 L.W. 222,

relying upon The Secretary of State for India in Council v. Jillo (1898) ILR 21 All. 133 (F.B.), receives considerable support from the later

decisions of the Allahabad High Court with which we are in agreement. Of these Allahabad decisions, the next case is reported in Chunna Mal v.

Bhagwant Kishore ILR (1937) All. 22 F.B., which contains observations that, though the application contains averments and facts necesary for a

plaint, it is not in fact a plaint, and, therefore, where a Court rejects an application for permission to sue as pauper, it cannot, after rejection of the

application, by a separate and subsequent order, allow the applicant to pay the court-fee u/s 149 and treat the application as a plaint. In a very

recent Full Bench decision of the same High Court in Dvendar Kumar Bharti v. Mahant Raghuraj Bharti ILR (1955) 1 All. 568 (F.B.), there is a

discussion about the nature of the application and also applicability of Order XXXIII, Rule 5. Though therefore an application for permission to

sue as a pauper contains the particulars required to be set out in a plaint and is signed and verified in the manner prescribed for the signing and

verification of pleadings, it is not actually a plaint; for otherwise there is no point in the provisions of Order XXXIII laying down that such an

application can be registered as a plaint. We are not to be understood as differing from the view taken in Balaguru Naidu v. Muthuratnam Aiyar

(1923) 46 M.L.J. 254, Chidambaram v. Nataraja Mudaliar ILR (1938) Mad. 1060, Brahmaramba v. Seetharamayya (1947) 1 M.L.J. 119, and

Periyasami Padayachi v. Minor Ulaganathan (1948) 2 M.L.J. 150, that the application is a composite one. Even so, in view of the provisions of

Order XXXIII, Rule 15, it is difficult to hold that its rejection for non-payment of court-fee amounts to a rejection of a plaint, which is appealable.

It seems to us, therefore, that there is no impediment or obstacle to the hearing of the present appeal. It is also to be remembered that the

appealability provided by Order XLIII, Rule 1(nn) is as a result of a Madras amendment resembling an appeal against an carder of remand and

being a provision to reopen a decision at an interlocutory stage. The appeal will, therefore, be heard on the merits by the referring Judge.

Basheer Ahmed Sayeed, J.

I agree.