MAVJI KANJI JUNGI Vs. PREMJI PUNJA HODAS

JUDGEMENT

(1.) Is the Court bound to grant time for payment of the requisite Court-fees while refusing to allow the applicant to sue as an indigent person under Rule 7 of Order 33 of the Code of Civil Procedure, 1908 ('the Code' for brief) ? If the Court has not granted such time while refusing to the applicant permission to sue as an indigent person, can it not grant such time for payment of the requisite Court-fees to him on his making an application for the purpose ? If such time is granted by the Court, can the order granting such time be interfered with in exercise of the revisional powers of this Court under Sec. 115 of the Code ? These are the main questions arising in this Civil Revisional Application questioning the correctness of the order passed by the learned Civil Judge (S. D.) at Porbandar on 28/12/1987 below the Application at Exh. 55 in Civil Miscellaneons Application No. 120 of 1985 granting the respondent herein time to pay the requisite Court-fees on his application after refusing it under Rule 7 of Order 33 of the Code.

(2.) The facts giving rise to this revisional application may be summarised thus : The respondent herein filed one application for permission to sue as an indigent person in the Court of the Civil Judge (S D.) at Porbandar. His application came to be registered as Civil Miscellaneous Application No. 120 of 1985. It appears that after hearing the parties, the Court rejected his application and refused him permission to sue as an indigent person. It appears that the Court did not grant time to pay the requisite Court-fees while refusing him permission to sue as an indigent person under Rule 7 of Order 33 of the Code. The respondent herein thereupon made one application for grant of time for payment of the requisite Court-fees payable on the claim made in the suit he intended to file as an indigent person. It was taken on record at Exh. 55 on the record of Civil Miscellaneous Application No. 120 of 1985. It appears that the petitioner herein filed his reply thereto at Exh. 56 on the record of Civil Miscellaneous Application No. 120 of 1985 and resisted the application at Exh. 55 on the record of that proceeding on various grounds. After bearing the parties, the learned Civil Judge (S. D.) at Porbandar, bv his order passed on 28/12/1987 below the application at Ex. 55 in Civil Miscellaneous Application No. 120 of 1985 was pleased to accept the application and to grant time to the respondent herein to pay the requisite Court-fees within one month from the date of the order. The petitioner herein has thereupon invoked the revisional jurisdiction of this Court under Sec. 115 of the Code for questioning the correctness of the order passed by the lower Court.

(3.) Shri Lakhani for the petitioner has submitted that the Court became functus officio on rejection of the application for permission to sue as an indigent person under Rule 7 of Order 33 of the Code, and as such it could not have granted time for payment of the requisite Court-fees to the applicant subsequently. According to Shri Lakhani for the petitioner, by the time the respondent herein had made the application for grant of time for payment of the requisite Court-fees payable on the suit that he intended to file as an indigent person, the claim made by him in his intended suit had become barred by the Law of Limitation and it was not open to the Court below to extend the period of limitation in the guise of granting the time for payment of the requisite Court-fees. Shri Lakhani has further submitted that the order rejecting the application for permission to sue as an indigent person was passed by the Court below in presence of the learned Advocates for the parties, and as such it was open to the learned Advocate for the respondent herein to apply for time to pay the requisite Court-fees when the Court was rejecting his application under Rule 7 of Order 33 of the Code. If such time was not prayed for by or on behalf of the present respondent, runs the submission of Shri Lakhani for the petitioner, the Court could not have subsequently granted time as it had not kept the matter alive as an unstamped plaint requiring any further order for its disposal. As against this, Shri Padiwal for the respondent has submitted that it was the bounden duty of the Court to have granted time for payment of the requisite Court-fees to the present respondent while refusing his application under Rule 7 of Order 33 of the Code and, since the Court had failed in its duty, it was again the bounden duty of the Court to grant time to the respondent herein on his subsequent application for the purpose. Shri Padiwal for the respondent has further submitted that, whatever be the Iaw prior to introduction of Rule 15A in Order 33 of the Code by the Code of Civil Procedure (Amendment) Act, 1976 (the 'Amending Act' for brief), the Court is now bound to grant time to the applicant for payment of the requisite Court-fees while rejecting his application for permission to sue as an indigent parson either under Rule 5 or under Rule 7 of Order 33 of the Code.