RAMASHREY ROY Vs. PASHUPATI KUMAR PATHAK

JUDGEMENT

(1.) These two revision petitions arise out of two orders dated the 14th July, 1964, and 1st May, 1965, passed by the Subordinate Judge, 2nd Court, Patna, under the following circumstances. The first party opposite parties had filed an application for permission to sue in forma pauperis and the same was registered as Pauper Miscellaneous Case No. 3 of 1963. On the 18th January 1961, the court rejected the prayer for permission to sue in forma pauperis and dismissed the miscellaneous case on contest with costs. A civil revision application to the High Court, Civil Revision No. 514 of 1964 was also refected on the 15th May, 1964. Then, on the 13th June, 1964, these members of the opposite party filed a petition before the court, praying that the original pauper application should be treated as a plaint and that they should be given an opportunity to pay the necessary court-fee. It was further alleged that the original valuation of the disputed property given as Rs. 1,00,000 may be amended to Rs. 14,000 only. They also filed the necessary court-fee of Rs. 1350 on the amended valuation on the 8th July, 1964. Then, on the 14th July, 1964, the court passed an order directing the registration of the plaint and ordering the Sarishtadar to check and report the amount of court-fee payable. It allowed the prayer for amendment of the valuation, subject, of course, to any objection that may be raised by the defendants on receipt of summons. The petitioners, who were the defendants, filed an objection on the 31st March, 1965, before the same court challenging the validity and competence of the court to pass the order dated the 14th July, 1964, further alleging that the said order was passed ex parte without giving due notice to them and praying to recall the same. The Court then, after hearing all concerned, passed the impugned order dated the 1st May, 1965, declining to recall its previous order dated the 14th July, 1964. Its attention was invited to two decisions of the Patna High Court, Lala Mistry v. Ganesh Mistry, AIR 1938 Pat 120 and Mathura Singh v. Smt. Sudama Debi, AIR 1954 Pat 170, where it was held that if an application to sue in forma pauperis is rejected and no order is passed by the court at the time of such rejection that the application would be treated as a plaint and further time granted to pay the requisite court-fee, the court has no jurisdiction on a subsequent date to order that the original application should be treated its a plaint and court-fee may be paid on the same. But the court observed that in view of Section 13 of the new Limitation Act (Act 36 of 1963) the principle laid down in the aforesaid decisions would not apply and that the court had jurisdiction after rejecting the pauper application to treat it as a plaint and to permit the payment of the necessary court-fee.

(2.) Civil Revision Nos. 556 and 570 of 1965 were filed against the orders dated the 1st May, 1965, and 14th July, 1964, respectively. They were first heard by a Single Judge of this Court (G.N. Prasad, J.) who felt some doubt about the correctness of the aforesaid Division Bench Judgments of the Patna High Court, in view of the judgment of the Supreme Court in Vijai Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941 and the provisions of Section 13 of the Limitation Act. He, therefore, referred the two revision petitions to a Division Bench. But the Division Bench thought that as one Division Bench cannot overrule the decision of an earlier Division Bench, both the revision petitions should be referred to a larger Bench. These two revision petitions have, therefore, been placed before this Full Bench.

(3.) I may, however, point out that the well-known rule of judicial comity that a Division Bench should if it is unable to accent as correct the principle laid down in an earlier Division Bench decision, refer the matter to a Full Bench is subject to certain well-known exceptions. As pointed out in Halsbury's Laws of England, 3rd edition, Volume 22, paragraph 1687, pages 799-800, (which had been cited with approval in a judgment of the Supreme Court in Jaisri Sahn v. Rajdewan Dubey, AIR 1962 SC 83 at p. 88), the exceptions are as follows :---