B S ANNAPURNA Vs. KUMAR ASWAMY

JUDGEMENT

(1.) I have heard the petitioners' learned Advocate. To my mind, the complications that have arisen in this case are totally avoidable had the petitioners' learned Advocate taken the elementary precaution of applying to the learned Trial Judge for permission to pay the Court fee if after the application to sue as an indigent person came to be rejected. The provisions of Order 33, Rule 15 make it clear that even in instances where the Court dismisses the application for permission to sue as an indigent person, that it is equally necessary for the Court to prescribe a reasonable period of time within which the party is entitled to pay the requisite Court fee and continue with the litigation. One of the possible contentions that could be raised against such a situation is that the application for permission to sue as an indigent person has to be in the form of an affidavit and the averment on oath which the plaintiff is required to make is to the effect that the party does not possess the requisite resources to pay the Court fees. This being the position, where the application comes to be rejected by the Court, the logical inference would be that if the party is not in a position to pay the Court fee that the question of granting time to pay the Court fee just could not arise since the party has already indicated total incapacity. The law however presupposes a slightly different situation namely, that there may be numerous instances where the application itself is false and therefore once the Court has verified the facts and held that in such an instance the party will have to pay the Court fees, the case will have to proceed like a normal litigation. Undoubtedly, the law also envisages another situation wherein the litigation may be of considerable importance and the plaintiff may be assisted by somebody else or may be able to raise funds from some quarter or there even be a change of circumstances and it is for this reason that the law provides for this grace period for payment of the Court fee after which alone the suit will stand dismissed.

(2.) PLAINTIFF's learned Advocate submits that when his application came to be dismissed by the Trial Court on 27-5-2003 that the Court did not grant any grace period within which the Court fee was to be paid. His submission is that on receipt of the certified copy the plaintiff was advised not to challenge that order but to raise the resources from friends and others and to tender the Court fee on the basis of the claim that had been limited. He states that on the assumption that this was permissible within the framework of the law, the Court fees were tendered to the office on 15-7-2003. An application was made to the Court for permission to prosecute the suit and it is this application that has been rejected by the Court by order dated 21-8-2003. It is this order that is under challenge before me. The learned Trial Judge has taken the view that if the plaintiff still intended to prosecute the suit despite rejection of his application on 27-5-2003 that it is essential for him within reasonable time to have applied to the Court for permission to pay the Court fee and that not having done so for one-and-a-half months would disentitle the plaintiff from prosecuting the suit and, the dismissal order has been extended to the suit itself.

(3.) THOUGH, 1 brought it to the notice of the petitioner's learned Advocate that irrespective of whether the petitioner desired to carry the proceeding higher, that he ought to have applied to the Trial Court even if the learned judge had not prescribed reasonable time for paying the Court fees, for perm ission to tender the amount without prejudice to his client's contentions. Learned Advocate's submission is that it is obligatory on the part of the Court to grant reasonable time when the order is passed and that there is provision for this under Order 33, Rule 15 and he also drew my attention to a judgment of the Bombay High Court in Makar and Krishnaji Joshi v Sadashiv Vithal joshi wherein more or less the same view has been taken. To this extent, the submission of the petitioner's learned Advocate will have to be upheld. To my mind, the tendering of the Court fees without obtaining formal permission of the Trial Court is only academic. The petitioner cannot be made to suffer for an error committed by the Court. It was obligatory, as indicated earlier, for a reasonable time to have been granted and this ought to have been done irrespective of whether the plaintiffs learned Advocate applied for it or not.