Ramdharlal and Others vs Nagendra Prasad and Others

Bhargava, J.—This is an application u/s 115 of the CPC seeking to have the order, dated 19-1-1962, passed by the 2nd Additional District Judge, Raipur, in Misc. Judicial Case No. 17 of 1958, revised.

Stated briefly the facts are that the applicants presented an application for permission to sue in forma pauperis under Rule 1 of Order 33 of the Code of CPC in October 1957. There was some enquiry about their pauperism. The application was opposed by the Defendants as will as by the State. The application was ultimately dismissed by the lower Court on 1-1-1962. The lower Court, however, did not pass any order granting time to the applicants-Plaintiffs to pay the requisite Court-fee.

Immediately after the above order was passed by the lower Court, the applicants made an oral request for granting them time to pay the Court-fee. The Court fixed the case for 19-1-1962 for consideration of this question. On 18-1-1962 the applicants filed an application u/s 149 of the CPC in the lower Court praying for a week''s time to pay the Court-fee. The amount of Court-fee involved was over Rs. 2,090. As the case was already fixed for 19-1-1962, the Court ordered that that application be put up on that date. One of the non-applicants (Defendants) had endorsed on the application that he had no objection to the application being granted. On 19-1-1962 the lower Court dismissed the application u/s 149 of the Code of Civil Procedure, filed on 18-1-1962, and refused to grant time to the applicants-Plaintiffs for payment of Court-fee on the ground that it had become functus officie when it had unconditionally dismissed the application for permission to sue in forma pauperis on (sic)101-1962. Being aggrieved by the order, dated 19-1-1962, the applicants have filed this revision petition.

After hearing, arguments of the learned Counsel on both sides, I am of the view that the question in dispute can only be determined satisfactorily by a Full Bench because there exists a conflict of opinion between two Division Bench decisions of this Court. In Bhanu Vs. Dalmia and Co. and Another, , Hidayatullah, C. J. (as he then was) and Tare, J. took the view that in proceedings for permission to sue in forma pauperis there are two matters before the Court: (i) the plaint, and (ii) the application to sue in forma pauperis, and that even if the application be dismissed there still remains the plaint and if time is given to pay Court-fee and it is paid, the plaint is good from the time when the plaint was filed. The Division Bench concluded that "This is not only the cursus curise but also the settled opinion of this Court". The question for consideration in that case was whether the Court, having initially granted time while dismissing the pauper application, could further extend time u/s 149 of the CPC after the expiry of the time initially granted. The Division Bench answered the question in the affirmative adding that sufficient cause must always be made out before extension can be claimed.

Another decision of a Division Bench of this Court which supports the view taken in Bhanu Himmat Kirar''s case (supra) is reported in Channu Lal Semi v. Shama Ramcharan and Ors. 1955 NLJ 545. There, the question for consideration was whether the suit should be deemed to have commenced, for the exercise of the powers under Order 39 of the Code of Civil Procedure, with the presentation of an application to sue in forma pauperis. The Court differed from the view taken by the Allahabad. High Court in Chunna Mal Vs. Bhagwant Kishore, and held that as soon as there is an application made to the Court to sue in forma pauperis there is before the Court a plaint without the necessary Court-fee plus an application for permission to sue in forma pauperis and an inquiry has to be made if the Court-fee cannot be paid. It was observed that-

Once that is assumed and accepted, the rest is clear. There is a suit pending though it is kept in abeyance till the question of pauperism is decided.

However, in Fateh Ali v. Ratan Lal and another First Appeal No 1 of 1959, decided on the 12th February 1962, another Division Bench of this Court (consisting of Naik, J. and myself) took the view that once the application under Rule 1 of Order 33 of the Code of CPC is dismissed either under Rule 5 of Rule 7 of that Order, the trial Court ceases to have session of the case and cannot grant time for payment of deficit Court-fee, even by recourse to Section 149 of the Code of Civil Procedure, and that it is only while dismissing the application under Rule 1 of Order 33 that it may yet treat the application as an understand plaint and grant time u/s 149 of the CPC to pay the deficit Court-fee; but this it cannot do, once it finally disposes of the application. We followed in that case the view taken by this Court in Chudaman v. Babaji ILR 1944 Nag 623 in which the view of the law enunciated in Mahadev Gopal Savant Vs. Bhikaji Vishram Chavan, and the opinion of Allsop, J. in Chunna Mal Vs. Bhagwant Kishore, were accepted. In these cases the principle laid down is that while rejecting an application for permission to sue as a pauper the Court can u/s 149 of the CPC allow the Plaintiff-applicant to pay the deficit Court-fee by treating the application as understand plaint; but as Section 149 of the Code of CPC merely enables the Court to exercise its discretion, its exercise has to be a judicial one and the applicant-Plaintiff cannot claim, as a matter of right, that he ought to be allowed some time to pay the Court-fee when his application to sue in forma pauperis is dismissed by the Court. In other words, the principle accepted was that the discretion could be exercised in favour of the Plaintiff-applicant only if his conduct did not disentitle him to the exercise of the discretionary power in his favour.

It would be pertinent to observe here that in Channulal Semi v. Shama Ramcharan and Ors. (supra) the two prior cases of this Court, viz., AIR 1933 237 (Nagpur) and Chudaman v. Babaji (supra) have not at all been considered. In the order of reference made by Tare, J. in Bhanu Himmat Kirar v. Dalmia and Co. (supra), Chudaman''s case (supra) is certainly referred to, but in the opinion of the Division Bench in that case this case does not appear to have been noticed. In Fateh Ali''s case, referred to above, the decisions in Channulal Semi v. Shama Ramcharan and Ors. (supra) and Bhanu Himmat Kirar v. Dalmia and Co. (supra) were not brought to the notice of the Court and they have not been noticed.

It would not be to any particular advantage to refer to the rulings of the other High Courts where also some conflict of opinion exists in this connection. In some cases the view taken is that an application to sue in forma pauperis is a composite document consisting of an understand plaint and an application to sue in forma pauperis and the mere fact that the application is dismissed leaves the plaint intact so that the Court is free, even after the dismissal of the application, to give an opportunity to the applicant-Plaintiff to make good the deficit of the Court-fee and if the Court-fee is paid, the plaint is good from the earliest time that it was before the Court. The contrary view is based on the conception that though the application to sue in forma pauperis contains all the particulars which are required to be stated in a plaint, it cannot be said that the application consists of two separate documents, written out on a single paper, namely, a plaint and an application for leave to sue as a pauper. According to this view, if the application to sue as a pauper is rejected, the plaint perishes with it unless at the time of rejection an opportunity is afforded to the applicant-Plaintiff to pay the Court-fee. However, it appears to be necessary to refer to the decision of the Supreme Court in Mahanth Ram Das Vs. Ganga Das, which has been strongly relied on by the learned Counsel for the applicants in the instant case for the proposition that the lower Court had not become power less to extend time merely by rejecting the application.

As the question involved is of great importance and as it is desirable that the conflict of opinion on the point to the extent it exists must be resolved, I think that the matter should be considered by a Full Bench. In the present circumstances, another single Bench decision or even a Division Bench decision taking one view or the other would, in my opinion, only add to the existing conflict of opinion. The question to be referred to the Full Bench may be formulated as under:

Whether after rejecting the application for permission to sue as a pauper, can the Court by a separate and subsequent order allow the applicant-Plaintiff to pay the: requisite Court-fee u/s 149 of the Code of CPC and treat the application as a plaint?

The papers may, therefore, be laid before my Lord the Chief Justice for constituting a Full Bench.

OPINION OF THE FB

K.L. Pandey, J.—This matter comes before us on a reference made by Bhargava, J. and the question which has been referred to us for our opinion is as follows:

Whether after rejecting the application for permission to sue as a pauper, can the Court by a separate and subsequent order allow the applicant Plaintiff to pay the requisite Court-fee u/s 149 of the Code of CPC and treat the application as a plaint ?

The material facts, shortly stated, are these. On 31st October 1957, the applicants made an application under Order 33 Rule 1 of the Code for permission to sue as paupers. That application, which was contested, came to be ultimately dismissed on 1 January 1962 without giving any time for payment of the requisite Court-fee. Immediately after the order was passed, the applicants made an oral request for grant of time to pay the Court-fee. The Additional District Judge fixed 19th January 1962 for consideration of this request. A day before the lastmentioned date, the applicants made a written application u/s 149 of the Code praying for a week''s time to pay the Court-fee. On 19th January 1962, the Judge declined to grant any time for the purpose on the view that he ceased to have session of the case as soon as he dismissed the application for permission to sue as a pauper. Thereupon, the applicants moved this Court for revising the order dated. 19th January 1962. Bhargava, J., before whom this revision came up for hearing, noticed a difference of opinion in the several decisions of this Court and made the reference.

The first of the decisions, which was mentioned before us as having, a bearing on the question, is Chudaman v. Babaji ILR 1944 Nag. 623. In that case. Bobde, J. held that, if the Court decided to reject the application for permission to sue as a pauper under Rule 5 of Order 33 of the Code or to refuse to allow the applicant to sue as a pauper under Rule 7 of Order 33 of the Code, it could treat the application as a plaint and, either before or at the time of the passing of the order under Rule 5 or Rule 7, allow, in its discretion u/s 149 of the Code, time to pay the requisite Court-fee. The learned Judge further held that, when the Court-fee is so paid, the suit would be deemed to have been instituted on the day on which the application for permission to sue as a pauper was made. The second case relied upon is Channulal v. Shama Ramcharan 1955 NLJ 545. A Division Bench of this Court held that, for purposes of exercise of the powers under Order 39 of the Code, the suit should be deemed to have commenced as soon as an application for permission to sue as a pauper was made. The Division Bench pointed out that, when such an application was made, there was before the Court a plaint without the necessary Court-fee plus an application for permission to sue as a pauper and the suit grounded on that plaint was kept in abeyance till the question of pauperism was decided. The third case is Bhanu Vs. Dalmia and Co. and Another, . There the question referred to a larger Bench was whether, having once granted time for payment of the prescribed Court-fee by the very order by which permission to sue as a pauper was refused, the Court could extend u/s 149 of the Code the time initially granted by it. A Division Bench of this Court answered that narrow question in the affirmative. Hidayatullah, C. J. (as he then was) observed as follows:

It has been held in this, Court that in proceedings for permission to sue in forma pauperis, there are two matters before the Court, (a) the plaint, and (b) the application to sue in forma pauperis. Even if the application (b) be dismissed, there Still remains the plaint (a), and if time is given to pay Court-fee and it is paid, the plaint is good from the time when the plaint (a) was filed. This is not only the cursus curioe but also the settled opinion of this Court. P. 731.

The last case is Fateh Ali v. Ratanlal and another First Appeal No. 1 of 1959 decided on the 12th February 1962 by Naik and Bhargava, JJ. Following the view taken in Chudaman''s case (supra), they held that, since the application under Order 33, Rule 1 of the Code had been dismissed without giving to the applicant any time to pay the prescribed Court-fee, the Court ceased to have session over the case and it could not grant to the applicant any time to pay the Court-fee on the basis of an application made by him after many days, even by recourse to Section 149 of the Code. Upon a consideration of the conclusions reached in the four cases as grounded on the facts of those cases, we do not find them to be irreconciliable. In Channulal''s case (supra), the question which we are now considering did not arise at all and the only question there was whether the powers under Order 39 could be exercised when there was before the Court only an application for permission to sue as a pauper. In Bhanu Himmat Kirar''s case (supra), time to pay the requisite Court-fee had already been granted by the very order by which the application for permission to sue as a pauper was dismissed, a course approved by Bobde, J. and Naik and Bhargava, JJ. in the other two cases, and the only question was whether the time initially granted could be further extended u/s 149 of the Code. A cleavage of opinion, however, appears in the wide observations made in Channulal''s case (supra) and Bhanu Himmat Kirar''s case (supra) and, since the question has been referred to us, we consider it proper to express our opinion on it.

Long ago, the Privy Council observed in Skinner v. Orde 6 IA 126 as follows:

The petition is filed, and proceedings are taken to inquire into the pauperism which are delayed by various orders of the Court....... 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......... Is there then anything in the Act which requires that in such a state of things the petition of Plaintiff shall be rejected altogether, and the Plaintiff be compelled to commence de novo ?......... The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court......... In their view..............the suit must be deemed to be instituted when that application was filed.

In Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, , the Supreme Court observed:

An application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court-fees Act. If the claim made by the applicant that he is a pauper is not established, the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of CPC is presented, and Order 1, Rule 10 of the Code of CPC would be as much applicable in such a suit as in a suit in which Court-fee had been duly paid. [P. 945]

Even in the case of Chudaman (supra), Bobde, J. recognised the dual character of the application for permission to sue as a pauper and quoted with approval the head note to that effect in Bank of Bihar Limited v. Sri Thakur Ram Chanderji Maharaj ILR 9 Pat. 439 and the observations in Mahadev Gopal Savant Vs. Bhikaji Vishram Chavan, . If, as indicated by the observations in the last paragraph, an application for permission to sue as a pauper is also to be regarded as a plaint from the inception, mere refusal of the request for permission to sue as a pauper would not determine the application in its character as a plaint. Once the dual character of the application is recognised, there is, we think no justification for assuming that, unless the application is before it is dismissed, treated as an unstamped plaint and time is granted for payment of the prescribed court-fee, and subsequent order to the same effect would amount "to renovating the plaint which accompanied the application". In our opinion, the application in its character as a plaint remains pending even after refusal of the permission to sue as a pauper and that explains the practice which has grown up, for treating it as an unstamped plaint and granting time to pay the prescribed court-fee. It was for this reason that Hidayatullah, C.J. (as he then was) forcefully stated:

This is not only the cursus curiae but also the settled opinion of this Court.

The criticism that there is no support for such a corurse in the provisions of Order 33 of the Code is pointless because they do not provide even for grant of time to pay the prescribed court-fee at the time of refusing permission to sue as a pauper. Once the dual character of an application for permission to sue as a pauper is accepted, it justifies not only the procedure of treating it, at the time of refusing permission to sue as a pauper, as an unstamped plaint and giving time to pay the prescribed court-fee but also the view that, even thereafter, it could be so regarded. This is, however, subject to one exception. If, at any earlier stage, the application has been dealt with in its character as an unstamped plaint and the Court has, in the exercise of discretion, declined to grant time to pay the requisite court-fee, the matter cannot be reopened.

It will not serve any useful purpose to examine the decisions of other High Courts which are conflicting. We may, however, mention that the dual or composite character of an application for permission to sue as a pauper is now widely recognised and the Calcutta High Court held in Jagadeeshwaree Debee v. Tinkarhi Bibi ILR 62 Cal. 711 and Kali Dasi Dasi v. Santosh Kumar Pal ILR (1939) I Cal. 112 that the termination of the proceedings in the matter of granting or refusing leave to sue as a pauper does not amount to rejection of the unstamped plaint, which continues to be before the Court and in relation to which the Court can subsequently grant, u/s 149 of the Code, time for payment of the prescribed court-fee. The Madras High Court too took the same view in Nallavadiva Ammal v. Subramania pillai ILR 40 Mad. 687 and Sundarathammal and Another Vs. Paramaswami Asari and Others, .

In view of the discussion in the foregoing paragraphs, we are of opinion that, even after rejecting an application for permission to sue as a pauper, the Court can, so long as the unstamped plaint (which it is in another character) is not rejected and a request for time to pay the prescribed court-fee not refused, grant by a separate order passed sub-equently time u/s 149 of the Code to pay the prescribed court-fee.