SATISH CHANDRA Vs. PHANI BHUSAN DE

JUDGEMENT

(1.) On 4-8-1949, one Indrabala Dasi applied to the 1st Subordinate Judge of Midnapore for leave to bring and prosecute a suit as a pauper. She filed a single document which was, in form, a plaint, but contained a statement to the effect that the plaintiff was a person of no means and among the reliefs claimed was a prayer that she might be permitted to prosecute her suit in forma pauperis. On that document being presented, the learned Judge started a Miscellaneous Judicial proceeding, but while that proceeding was still pending, Indrabala died on 18-11-1949. On 17-12-1949, Indrabala's son, Phani Bhusan De, who is the Opposite Party to this rule, applied for substitution of himself in the place of Indrabala and for leave to continue the litigation on such substitution. By an order passed on the same date, the learned Judge allowed substitution as prayed for, directed the original application to be amended and directed the Opposite party to file all requisites for a fresh service of notices by a certain date. Thereafter, on 4-1-1950, the principal defendant in the intended; suit, who is the petitioner before us, filed an objection to the effect that there could be no substitution in an application for leave to sue as a pauper. He added that, on merits too, the Opposite Party was not entitled to leave to sue in forma pauperis, as he had sufficient means to pay the full court-fees on. the claim and that his only remedy was to bring. a fresh suit on his own account in the ordinary manner. After certain adjournments, the matter came to be heard on 10-6-1950, when it was represented on behalf of the Opposite Party that he did not wish to proceed with his application, as no substitution in an application for leave to sue as a pauper was possible and that he would file, a separate application. Thereupon, the learned Judge dismissed the miscellaneous case for default. On the same day, the Opposite Party filed a fresh application in which he stated that he was prepared to continue the suit on payment of court-fees and he prayed that the order for his substitution, already made, might be maintained and he might be granted two months' time to pay the requisite court-fees. The hearing of this application was adjourned from date to date for various reasons, but before it came to be heard, the Opposite Party made a. third application on 4-7-1950, under Section 151, Civil P. C, by which he repeated his representation that he desired to continue the suit on payment on court-fees and prayed that the order of dismissal for default, passed on his first application on 10-6-1950, might be vacated. This application was, by an order passed on 8-7-1950, directed to be put up on the 13th which had already been fixed for the hearing of the earlier application. On 13th July, the learned Judge heard arguments but adjourned the case to the next day for further consideration, as the pleaders of both the parties wanted ten days' time to look more fully into the law. For one reason or another the hearing could not be resumed till 20th July when the learned Judge heard further arguments and allowed the application of the Opposite Party. He confirmed the order for substitution and amendment made on 17-12-1949, "as made in respect of the plaint, and not in respect of the pauper application." On that basis he ordered that the Opposite Party would be allowed to continue the suit on payment of the necessary court-fees and he granted the Opposite Party a fortnight's time to comply with the condition. It is against this order that the present Rule is directed.

(2.) The learned Judge proceeded on the view that an application for leave to sue as a pauper was not merely such an application but also a plaint and that, consequently, even after the application was dismissed, the plaint still remained before the Court as a plaint on which proper court-fees had not been paid. Since the plaint had still to be dealt with, the Court, he held, could exercise, in respect of it, its powers under Section 149, Civil P. C. and could, in the present case, grant the Opposite Party, on whom the right to sue had devolved, an extension of time to put in the requisite court-fees. The learned Judge pointed out further that the dismissal of the pauper application in the present case was not a dismissal under E. 7 (3) of Order 33 and, consequently, the provisions of Rule 15 of the Order would not apply. He added that he preferred to follow the Division Bench ruling in the case of Jagadeeshwaree Debee v. Tinkari Bibi, 62 Cal. 711 rather than the single Judge decision in Bisivanath Das v. Khajctrali Molla, I. L. R. (1939) 2 cal. 68: 43 cal. W. N. 686 which was based on an earlier Calcutta case and had taken a contrary view. The earlier case referred to by the learned Judge was obviously the case of Aubhoya Ghttrn Dey v. Bissesswari, 24 Cal. 889, a decision of a Division Bench.

(3.) It was also held by the learned Judge that, in any event, he could treat the application filed on 10-6-1950, as an application under Section 151, Civil P. C. and allow the Opposite Party, in the ends of justice, to continue the suit filed by his mother. No order appears to have been passed on the application tiled on 4-7-1950, presumably in the view that the order of dismissal passed on 10-6-1950 was an order dismissing the pauper application and not also rejecting the plaint and, therefore, it was not necessary to vacate it.