Uthuman Pillai Tharagan and Others vs T. Muhammad Usaf Tharaganar and Others

King, J.—The plaintiffs in O.S. No. 58 of 1931 on the file of the Subordinate Judge of Tinnevelly began legal proceeding''s against the

defendants by applying on 30th''July, 1930, for'' permission to sue them-in forma pauperis. That permission was'' refused on 21st August, 1931,

by an order which also directed the plaintiffs to pay the defendant 1'' costs. As soon as this1 order was pronounced plaintiffs asked for time to pay

court-fee. The matter was adjourned to 30th September, 1931. On that day court-fee was paid, and the petition registered as a plaint. In April,

1933, defendant 1, who had said nothing about his costs in his original written statement applied for permission to raise a fresh ground of defence,

namely, that as plaintiffs had not paid his costs they were debarred by the provisions of Order 33, Rule 15 from maintaining the suit. This

permission was granted, and a new issue framed. On 30th August, 1933, plaintiffs paid the costs into Court. The learned Additional Subordinate

Judge then proceeded to try the new issue and held that the suit was not maintainable. On appeal the learned District Judge of Tinnevelly reversed

the decision on this issue and remanded the suit for trial on the other issues. Against that order '' of remand the present Civil Miscellaneous Appeal

has been filed.

The decision of the appeal depends mainly upon the interpretation of two provisions in Civil Procedure Code.

The first is Order 33, Rule 15, which runs as follows:

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 Government and by the opposite party opposing his application for leave to sue as a pauper.

and the second is Section 149 which runs as follows:

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-fee 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.

The argument of the earned Counsel for the respondents is that Order 33, Rule 15 applies only to the filing of a fresh plaint, and not to the

conversion into a plaint of the particulars'' which Order 33, Rule 2 prescribes must accompany the application for permission to sue as a pauper.

For the purposes of Section 149 it is further argued, such particulars can be regarded as already constituting a plaint upon which the whole court-

fee has not been paid, and in the present case the Court has rightfully under the powers which Section 149 confers upon it permitted the plaintiffs

on 30th September, 1931, to pay the whole of the court-fee. The argument for the appellants, on the other hand, is that the action of the plaintiffs

on 30th September, 1931, in paying the court-fee and utilising as their plaint the particulars which they had already given in their petition amounts

to ''instituting a suit in the ordinary manner'' within the meaning of those words in Order 33, Rule 15 that no plaint was pending before the learned

Subordinate Judge on 30th September, 1931, or even on 21st August itself when the adjournment was granted as he had already refused

permission to sue in forma pauperis; that Section 14,9 cannot therefore apply; and that the provisions of Order 33, Rule 15 alone follow, and

inevitably follow, the order under Order 33, Rule 7 dismissing plaintiffs'' application.

For the position that the provisions of Section 149 apply to the present facts the learned Advocate for the respondents relies upon three rulings

Mrinalini Debi v. Tinkauri 16 C.W.N. 641 Balaguru Naidu v. Muthuratnam Aiyar (1923) 46 M.L.J. 254 and Bir Ram Vs. Lachmi Rai Of these

the first which is a Bench decision, does riot specifically refer to Section 149, but lays it down that the provisions of Order 33, Rule 15 should be

relaxed in favour of a plaintiff on whom no specific demand had been made to pay the costs awarded against him in the order dismissing his

application for permission to sue in forma pauperis. This ruling however 4pes not decide, as it, was bound to decide if it were accepted that

Section 149 applied, what was the date of the institution of the suit. Balaguru NaifLu v. Muthuratnam Aiyar (1923) 46 M.L.J. 254 is the decision

of a single Judge, contained in a brief judgment in which no mention appears of any possible argument to the contrary. Bir Ram Vs. Lachmi Rai is

again the authority of a single judge, and again seems to assume that only one view, is possible. The arguments relating to Section 149 are

contained in the last paragraph of that judgment, and were really unnecessary for the decision of the case before the learned Judge, where the

principal reason for holding Order 33, Rule 15 inapplicable was the absence of any formal order specifying the amount of costs which plaintiff as

petitioner in the pauper application had to pay.

Such is the state of the authorities relied on by the respondents. They can hardly, with respect, be called convincing. Against them the learned

Advocate for the appellants has cited, amongst others, two very recent rulings, one of a Full Bench pf the Allahabad High Court Chunna Mal Vs.

Bhagwant Kishore, and one of a Bench of the Rangoon High Court Ma Saw Yin v. S.P.K.A.A.M. Firm AIR 1937 Rang. 185. The judgment of

the majority on the Full Bench and the Rangoon judgment examine and analyse elaborately the provisions of Section 149, Order 33, Rule 15 and

other relevant rules, and also all the previous authorities and their conclusion is that Section 149 Cannot empower any Court after refusing to allow

a petitioner to sue in forma pauperis, to pay court-fee and treat his application as a plaint. If such a petitioner files a suit, whether with the original

document contained in his petition or with a plaint subsequently drafted he can do so only by strict compliance with the provisions of Order 33,

Rule 15, under which rule alone the suit conies into existence. I need not set out the reasoning adopted by the learned Judges in these rulings. I

need only say that I respectfully agree with them. I hold accordingly that Section 149 does not apply to the facts of this case, and that when court-

fee was paid by the plaintiffs on 30th September, 1931, the suit was not properly instituted under Order 33, Rule 15.

It does not however necessarily follow that at the time when he delivered his judgment dismissing the suit on that ground, the learned

Subordinate judge was right. Respondents have a second line of defence, based upon Ramakrishna Nadar and Another Vs. Ponnayya Thirumalai

Vandaya Thevar and Others, . That is a judgment of a Bench of this Court which is binding upon me, and according to it even thourh Order 33,

Rule 15 is imperative, a suit in which these costs have in fact been paid must be treated as one instituted on the day on which the costs were paid.

Applying this ruling to the facts of the present case I must hold that the suit in question was validly instituted on 30th August, 1933. It is necessary

therefore to remand the suit, as the learned District Judge has done for trial on the other issues, and this appeal is formally dismissed with the

modification already made as to the date on which the suit is to be deemed to have been instituted. There will be no order for costs in this appeal,

or in the lower appellate Court. Costs of the suit will abide the result.