SHAKUNTLA DEVI Vs. SHAM NATH AND

JUDGEMENT

(1.) DOES the filing of a reply to an application under Order 33 of the Code of Civil Procedure, (hereinafter referred to as 'the Code'), for permission to sue as an indigent person debar the Defendant from filing a written statement when the application is deemed to be a plaint? This here is point in issue.

(2.) TO give a brief background, on July 24, 1981, Shakuntla Devi filed an application under Order 33 of the Code for leave to sue the Defendants as an indigent person to recover a sum of Rs. 23,000 odd from them. Soon thereafter Shakuntla Devi died and later her legal representatives were brought on record. On April 3, 1982, the Defendants filed a reply to the application of Shakuntla Devi, calling it a written statement, controvert thereby all the allegations contained therein. This application was, later permitted to be withdrawn by the order of the trial Court of March 1, 1985 and it was ordered to be treated as suit and the case was then adjourned for the filing of the written statement to April 15, 1985, and then to May 17, 1985, on which date the Plaintiffs filed a replication to the written statement filed by the Defendants on April 3, 1982. While the Defendants filed an application for time being granted to them for the filing of a written statement. This was declined with the observations that the written statement had already been filed. Issues were thereafter framed. Later, however, on the same day, that is, May 17, 1985, an application for review was made praying therein that the Defendants be permitted to file a written statement. This was opposed by the Plaintiffs, but the trial court reviewed its earlier order and permitted the Defendants to file a written statement on the ground that no written statement had been filed after the application under order 33 of the Code had been converted into a plaint. It is this order that is now sought to be challenged in revision.

(3.) TREATING an application under order 33 of the Code to be a composite document, that is, both an application for leave to sue as an indigent reason as also a plaint would lead to anomalous results contrary to the relevant provisions of the Code as was so well brought out by the Full Bench in Chunna Mal v. Bhagwant Kishore : AIR 1936 All 584 In this behalf, it would, in the first instance, be pertinent to advert to the provisions of Rule 15 of Order 33 of the Code, which deal with denial of the application for leave to sue as an indigent person. In terms thereof, such an order bars any subsequent application of a like nature in respect of the same right to she, but it enables the Applicant to institute a suit in the ordinary manner in respect of such right provided he first pays the costs if any, incurred by the State Government or the opposite party in opposing his application for leave to sue as an indigent person. It is now well -settled that payment of such costs is a condition precedent to the institution of the suit, though the Court has the discretion to permit the Plaintiff to pay such costs within such time as it may allow. A suit filed without the Plaintiff having paid such costs, would not be maintainable and this defect cannot be cured by subsequent payment of costs during the pendency of the suit. Here, if the application to sue as an indigent person is treated as a composite one, the provisions of Rule 15 of order 33 of the Code, could be directly evaded by the Plaintiff being enabled to prosecute his claim, without, in the first instance, paying the costs referred to in that Rule.