SANTO Vs. RAJ KAUR

JUDGEMENT

(1.) The defendant-appellants have filed this appeal against the judgment and decree of the Additional District Judge, Sangrur, dated the 29th October, 1981, whereby the appeal filed on behalf of the defendant-appellants was dismissed as time barred.

(2.) The plaintiff-respondents filed a suit for recovery of Rs. 48,000/-. The trial Court decreed the suit on 23rd of July, 1980, for a sum of Rs. 38,400/-. An appeal against the said decree of the trial Court was filed on 6th August, 1980 in forma pauperis. Along with the memorandum of appeal an application for permission to file the appeal as indigent person was also filed by the appellants. Notice of this application was given to the plaintiff-respondents who filed their reply on 12th of September, 1980. Thereafter the case was fixed for 15th October, 1980 for which date a report of the Collector was called. On that date, i.e., 15th October, 1980 the plaintiffs moved an application to the effect that they be allowed to deposit requisite Court-fee in appeal and the same was deposited on that very day. Thereafter the plaintiff respondents moved an application that the appellants were not paupers and the list of properties submitted by them along with the application for permission to file the appeal as paupers, was not correct. The appeal shall be deemed to have been filed on 15th October, 1980, on which date the Court-fee was deposited. On that date, according to the plaintiffs, the appeal was barred by time and, therefore, the same was liable to be dismissed as such. This application was resisted on behalf of the defendant-appellants. It was alleged that the Court-fee amount was collected by the relatives and then the same was deposited. The application for permission to file the appeal in forma pauperis was not mala fide. However, the evidence of the parties on this controversy was recorded. Ultimately, it was held that the application filed by the appellants for permission to file the appeal in forma pauperis was not bona fide. It was submitted on behalf of the appellants before the lower appellate Court that, as per rule 2 of Order 44 of the Code of Civil Procedure, the Court rejecting the application for permission to file an appeal in forma pauperis may allow time to an applicant to deposit Court-fee and upon such payment, the memorandum of appeal in respect of which such fee is paid, shall have the same force and effect as if such fee had been paid in the first instance. This request made on behalf of the appellants was rejected by the learned Additional District Judge on the ground that the said provisions are not applicable to the present case because here the appellants deposited the Court-fee themselves and not after rejection of their application to file an appeal in forma pauperis. Thus, according to the lower appellate Court, the appeal will be deemed to have been filed on 15th October, 1980 when admittedly it was barred by time. Dissatisfied with the same, defendants have come up in second appeal to this Court.

(3.) Learned counsel for the appellants contended that rule 2 of Order 44 Code of Civil Procedure has been recently added after amendment of the Code of Civil Procedure in the year 1976. It is an enabling provision which specifically provides :-