MAHADEV GOPAL SAVANT Vs. BHIKAJI VISHRAM CHAVAN

JUDGEMENT

(1.) THIS is a revision application involving an important question of law on which there has been a considerable divergence of opinion. On March 18, 1940, the petitioner made an application to the Small Cause Court, Bombay, for leave to sue as a pauper to recover Rs. 218 due to him on a promissory note dated March 23, 1937. His claim was then in time. The Deputy Registrar of the Small Cause Court issued a notice to the opponent and after holding an inquiry, he passed an order on April 15, 1940, refusing to allow the petitioner to sue as a pauper. On the same day the petitioner made an application to the Small Cause Court requesting permission to file a suit that day on payment of four annas and to pay the balance of the Court-fees in seven days. On that application the Court made the following order : "Receive rupee one on account of Court-fee to-day and allow suit to be filed. Balance of costs to be paid in seven days." It appears that the suit was registered on the same day as suit No.7293 of 1940 and the balance of the court-fee was paid within the time allowed. By that time the claim under the promissory note had become time-barred, but the petitioner wanted the suit to be deemed to have been instituted on the day on which he made the application under Order XXXIII, Rule 2, of the Civil Procedure Code, for permission to sue as a pauper. But the learned Judge held that that could not be done since upon the passing of the order of refusal for leave to sue as a pauper, the proceedings instituted under Rule 2 came to an end, and so he dismissed the suit as time-barred. The petitioner then moved the Full Court of the Small Cause Court, but that Court also took the same view and confirmed the order of the learned trial Judge. These facts are undisputed, and it is obvious that the petitioner's suit would be time-barred if it is held to have been filed on the day on which he paid the Court-fee and not on the day on which he made the application for permission to sue as a pauper. The question, therefore, is what is the effect of the order passed by the learned Judge on April 15, 1940, accepting Re. I as court-fee and granting one week's time to pay the balance of court-fee and allowing the suit to be filed. Prima facie it appears from the wording of the application made by the petitioner that he did not request the Court to accept four annas as court-fee on the original application for permission to sue as a pauper. In the last paragraph of the application he says : I must therefore file the suit to-day. As I have no moneys with me to-day I have to pray that Your Honour will be pleased to allow me to file the suit on payment of annas four to-day and permit me to pay the balance of Court-costs in 7 days. He, therefore, wanted to file a suit on that day with a Court-fee of annas four and requested the Court to grant him time to pay the deficit Court-fee. It cannot, therefore, be said that the Court ordered that Re. 1 should be received as court-fee on the application for leave to sue as a pauper. It is, however, urged on behalf of the petitioner that what he really wanted to request the Court was to accept annas four as Court-fee treating his application for leave to sue as a pauper as a plaint and grant him time to pay the balance of the requisite Court-fee. It may be pointed out that this application itself contained all the information required to be given in the plaint and was verified. The only difference between the application made under Order XXXIII, Rule 2, and this application is that in the former he "seeks" to recover Rs. 218, while in the latter he says that he "has to" recover a sum, of Rs. 218. But the Court registered his latter application as a suit and gave a number to it, and did not register the original application. THIS is sufficient to show that the application made on April 15, 1040, was really the institution of a suit in the ordinary manner as contemplated by Order XXXIII, Rule 15, of the Code of Civil Procedure.

(2.) IF the contention of the petitioner that he really intended to ask the Court to treat his application under Order XXXIII, Rule 2, as a plaint and accept annas four as Court-fee on that, and grant him further time for the payment of the balance of the requisite Court-fee in the exercise of its powers under Section 149 of the Code of Civil Procedure, be accepted, then the question arises whether the Court could do so.

(3.) IN Keshav Ramchandra v. Krishnarao Venkatesh (1895) I.L.R. 20 Bom. 508 this Court held that when the plaintiff's application to sue as a pauper was disposed of under Section 409 of the Code of Civil Procedure, 1882 (corresponding to Order XXXIII, Rule 7, of the present Code) there was no proceeding pending which could be continued and kept alive by the payment of Court-fees. The only course then open to the applicant was that declared in Section 413 (O. XXXIII, Rule 15) of the Code of Civil Procedure, namely, to institute a suit, and the date of the institution of that suit for the purposes of limitation would be the actual date thereof. This case was followed in Keshavlal v. Mayabhai (1907) 9 Bom. L.R. 204 where on p. 207, Chandavarkar J. pointed out that when leave to sue in forma pauperis is refused, there is no application alive at the date of the payment of the Court-fees on which such payment could operate so as to give it the retrospective (effect of a plaint. It is urged that these cases were decided under the Code of 1882 which contained no provision corresponding to Section 149 of the present Code of 1908. But even: under the old Code Section 54 (corresponding to Order VII, Rule 11, of the present Code) enabled the Court [to require a party to supply the requisite stamp paper for a plaint within the time fixed and to reject the plaint if the requisite Court-fees be not paid within the time allowed, and if the necessary Court-fees be paid within the time, then as held in Dhondiram v. Taba Savadan (1902) I.L.R. 27 Bom. 330 : S.C. 5 Bom. L.R. 198 for the purposes of limitation, the suit is deemed to have been instituted on the day on which the plaint was presented. Hence the enactment of Section 149 in the Code of 1908 does not affect the correctness of the rulings of this Court in Keshav Ramchandra v. Krishnarao and Keshavlal v. Mayabhai and all that they lay down is that once leave to sue as a pauper is refused under Order XXXIII, Rule 7, the proceedings come to an end. Our attention has not been called to any other case of this Court directly in point, but Mr. Pradhan has referred to certain observations made by me in Keshavlal v. Bai Dahi (1939) 41 Bom. L.R. 784 On p. 786 I have stated as follows : Even in the case of an application for permission to sue as a pauper, if that application is rejected, it is not to be deemed as a rejection of the plaint.... It is open to the Court to grant permission to the applicant under Section 149 of the Civil Procedure Code to pay the deficit Court-fees, and the suit may be ordered to be registered when such Court-fees are paid. IN that case the original application itself will be treated as a plaint and the suit as having been instituted on the date on which the application was presented.