RAMDHARLAL NAGENDRA PRASAD SAO Vs. NAGENDRA PRASAD SAO

JUDGEMENT

(1.) THIS matter comes before us on a reference made by Bhargava J. , and the question which has been referred to us for our opinion is as follows whether after rejecting the application for permission to sue as a pauper, can the court by a separate and subsequent order allow the applicant-plaintiff to pay the requisite court-fee under Section 149 of the Cods of Civil Procedure and treat the application as a plaint ?

(2.) THE material facts, shortly stated, are these. On 31st October 1957, the applicants made aa application under Order 38, Rule 1, of the Code for permission to sue as paupers. That application, which was contested, came to be ultimately dismissed on 1st January 1962, without giving any lime for payment of the requisite court-fee. Immediately after the order was passed, the applicants made an oral request for grant of time to pay the court-fee. The Additional District Judge fixed 19th January 1962 for consideration of this request. A day before the last mentioned date, the applicants made a written application under Section 149 of the Code praying for a week's time to pay the court-fee. On 19th January 1962, the Judge declined to grant any time for the purpose on the view that he ceased to have seisin of the case as soon as he dismissed the application for permission to sue as a pauper. Thereupon, the applicants moved this Court for, revising the order dated 19th January 1962 Bhargava J. , before whom this revision came up for hearing, noticed a difference of opinion in the several decisions of this Court and made the reference.

(3.) THE first of the decisions, which was mentioned before us as having a bearing on the question, is Chudaman v Babaji. ILR (1944) Nag 623: (AIR 1944 Nag 357 ). In that case, Bobde, J. , held that, if the Court decided to reject the application for permission to sue as a pauper under Rule 5 of Order 33 of the Code or to refuse to allow the applicant to sue as a pauper under Rule 7, of Order 33 of the Code, it could treat the application as a plaint and. either before or at the time of the passing of the order under Rule 5 or Rule 7, allow in its discretion under Section 149 of the Code, time to pay the requisite court-fee. The learn ed Judge further held that, when the court-fee is so paid, the suit would be deemed to have been instituted on the day on which the application for permission to sue as a pauper was made. The second case relied upon is Channulal v. Shama Ramcharan, 1955 Nag LJ 545 : (AIR 1955 Nag 259 ). A Division Bench of this Com! held that, for purposes of exercise of the power under Order 39, of the Code, the suit should be deemed to have commenced as soon as an application for permission to use as a pauper was made The Division Bench pointed out thai when such an application was made, there was before the Court a plaint without the necessary court-fee plus an application for permission to sue as a pauper and the suit grounded on that plaint was kept in abeyance till the question of pauperism was decided The third case is bhanu Himmat Kirar v Dalmia and Co. 1959 MPLJ 727 (AIR 1959 Madh Pra 169 ). There the question referred to a larger Bench was whether, having once granted time for payment of prescribed court-fee by the very order by which permission to sue as a pauper was refused, the Court rould extend under Section 149 of the code the time initially granted by it. A Division Bench of this Court answered that narrow question in the affirmative. Hidayatullah C. J. (as he then waff) observed as follows :