BHAIRU DAN Vs. RATAN LAL

JUDGEMENT

(1.) THIS is a revision by Lahar Chand and others against the order of the District Judge of Bikaner and has arisen in the following circumstances :

(2.) IN 1928, Ratan Lal opposite party and his brother Ranchhor Dass (now dead) obtained the monopoly to start a wool press from the former State of Bikaner. As they had no capital, they took a loan from Kaluram Chauthmal. There was dispute in that connection and an arbitration award was made in June, 1930. According to that award, Ratanlal and his brother were to pay Rs. 73,000/- to Kaluram Chauthmal within 15 days. If the payment was made, the press would become the property of Ratanlal and his brother; but if payment was not made, Kaluram Chauthmal were to pay Rs. 10,000/- to Ratanlal and his brother and retain the press as owners. Ratanlal and his brother had no money. So they took a loan of Rs. 73,000/- from Bhairu Dan to pay off Kaluram Chauthmal. A further sum of Rs. 11,000/-was also taken as loan from Bhairu Dan, and Kaluram Chauth-mal were paid off. The case of Ratanlal and his brother with respect to this transaction is that it was a mortgage. The case of the defendants-applicants who are representatives of Bhairu Dan is that the press was sold out and out for Rs. 84,000/ -. Soonafter, Ratanlal and his brother applied to the State for recording the sale of the press in the name of Bhairu Dan and prayed for a change of the patta. On the 17th June, 1930, possession of the press was made over to Bhairu Dan but two rooms were retained by Ratan Lal and his brother as servants of Bhairu Dan, (though the point whether they were servants of Bhairu Dan is in dispute ). On the 17th of August, 1930, the patta of the press was granted by the State of Bikaner to Bhairu Dan and was notified in the Bikaner Gazette on the 18th of October, 1930. The defen-dantes' case is that Ratan Lal and his brother were dismissed in December, 1930. It is the admitted case of the parties that Bhairu Dan was put in possession of these two rooms also on 15th of February, 1934. On the 5th of November, 1936, Ratan Lal and his brother filed a petition in the Bikaner High Court for leave to sue in forma pauperis and for recovery of possession of the press. On the 29th of April, 1937, the High Court of Bikaner held that Ratan Lal and his brother were paupers. It was also held that there was no cause of action. The petition was dismissed but two months' time was allowed to them to make good the court-fee if they wanted to proceed with the suit. On the nth of June, 1937, Ratan Lal and his brother went in revision against this order. This revision was dismissed on the 3rd of March, 1938. There was then an appeal to the Judicial Committee of the former State of Bikaner. This appeal was also dismissed on the 19th of September, 1938. Then it is said that there was a fariyadi petition before His Highness the Maharaja of Bikaner. The date of this petition is not known but it is said to have been made sometime in 1943. An order is said to have been passed on this fariyadi petition on the 31st of March, 1949. By this order, the His Highness of Bikaner waived limitation in this case and allowed Ratan Lal and his brother to bring a suit on or before the 6th of April, 1949. On the 5th of April, 1949, Ratan Lal filed a petition in the court of the District Judge of Bikaner praying that he be allowed to sue in forma pauperis and the cause of action was based on the dispossession of the two rooms on the 15th of February, 1934. This petition was disposed of by the District Judge on the 9th of December, 1950. By his order of that date, the District Judge held that in view of O. XXXIII r. 15 C. P. C. , no second petition for leave to sue in forma pauperis lay. He, therefore, dismissed this petition; but by the same order he directed the applicants to make good the court-fee within two months in order that the suit be registered. The present revision is directed against that part of the order by which the District Judge ordered Ratan Lal to make good the court-fee within two months. The case came up for hearing before a learned single Judge of this court on the 18th of July, 1951, and he has referred it to a Division Bench by the following order :- "this revision has been argued at some length but since the question involved is of importance and there is also divergence of authorities, it appears to be fit and proper that it should be disposed of by a larger Bench. The question invol-ved may be stated as follows: - "whether while rejecting the application for permission to sue as a pauper under O. XXXIII, r. 15 C. P. C. , the court is competent under sec. 149 C. P. C. to treat the application as a plaint and allow the applicant to pay the requisite court-fee stamp". IN the circumstances mentioned above, this revision is referred for a decision to a Division Bench. It may be mentioned that costs incurred by Ratan Lal and his brother in the previous application were deposited on the 20th of February, 1951, and the court-fee was made good on the 1st of February, 1951.

(3.) IN Aubhoya Churun Dey vs. Bisseswari (I. L. R. 24 Cal. 889) the application was rejected on the 16th May, 1891. The Civil Judge subsequently by an order of the same date allowed time within which to pay the necessary court-fee stamps. It was held that the court had no power to do so. A contrary view was taken in Jagdiswari vs. Tinkari Bibi (A. I. R. 1936 Cal. 28) but Edgley, J. while sitting alone in A. I. R. 1939 Cal. 394 preferred to follow the decision in 24 Calcutta 889 after a careful consideration of the entire case law on the subject.