VAMANRAO LALLUBHAI Vs. PRANLAL BHAGWANDAS

JUDGEMENT

(1.) THE petitioner made an application in the Court of the First Class Subordinate Judge, Surat, for leave to sue in forma pauperis. In his application he gave the particulars required in regard to plaints in suits and filed a schedule of the moveable and immoveable property belonging to him and the estimated value thereof and he signed and verified the same, as required by Order XXXIII, Rule 2, Civil Procedure Code, 1908. Notice was issued to the Government Reader and the opponents under Order XXXIII, Rule 6 . THE learned Subordinate Judge found that, though the petitioner had no means to pay the court-fees, his application did not disclose any subsisting cause of action. He, accordingly, dismissed the application with costs, apparently under Order XXXIII, Rule 7(3). THE petitioner then filed the present civil revision application, alleging inter alia that the opponents having admitted his pauperism the lower Court was wrong in going into the question as to what would be the effect of the previous proceedings and in holding : that the suit would be barred by res judicata. He, accordingly, prayed (1) that the lower Court's order be set aside and (2) that he be allowed to proceed with his suit on payment of proper court-fees. Mr. Justice N.J. Wadia passed the following order : Rule, limited to the question whether time should have been given to pay proper court-fees. This rule has now come up for hearing. It seems to me clear that Mr. Justice N.J. Wadia has rejected the application so far as the prayer for the setting aside of the lower Court's order is concerned and that it has been admitted only for the consideration of the question whether thereafter the petitioner should be allowed to pay proper court-fees and to proceed with his suit in the ordinary manner.

(2.) THE learned advocate for the petitioner has contended that this Court should exercise its discretion in his favour under Section 149 of the Civil Procedure Code. That section reads thus : Whether the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees 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.

(3.) APART from the authorities, it is to be observed that under Order XXXIII, Rule 2, the application for permission to sue as a pauper should contain the particulars required in regard to plaints in suits, but that in spite of this it is referred to not only in Rule 2 but also in the subsequent rules as an, " application." It is only Rule 8 that lays down that where the application is granted, it shall be numbered and registered, and "shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner", etc. So that apart from the provisions of Rule 8, an application for permission to sue as a pauper is throughout regarded as an application and not as a plaint. That being so, prima facie it cannot be said that the court-fee that is required to be paid on a plaint has not been paid " with respect to such an application" within the meaning of Section 149. As to Order XXXIII, Rule 15, again, apart from the authorities, the intention of the Legislature appears to be that when an order has been made refusing to allow the applicant to sue as a pauper, the liberty that is given to him to " institute a suit in the ordinary manner" is the only remedy then open to him. The rule first says that 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; and then it proceeds : 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 Provincial Government and by the opposite party in opposing his application for leave to sue as a pauper. The applicant's right to institute a suit in the ordinary manner is thus subject to the condition of prior payment by him of costs incurred by the Government and the opposite party, and it seems to me prima facie that his liberty to sue, so limited, is intended to be the only course open to him on his application to sue as a pauper being refused.