PRATAPCHAND Vs. ATMARAM

JUDGEMENT

(1.) THE non-applicants had made an application for permission to sue in forma pauperis. The application was made on 6th August 1931. After taking evidence and obtaining a report from the Collector an order was passed on 14th April 1932 dismissing the application. One of the applicants thereupon immediately made an application for permission to pay the court-fees, and after hearing the parties on that application and framing issues the Additional District Judge has found that the application for permission to pay court-fees was not made mala fide and that such application after the dismissal of the application to sue in forma pauperis was maintainable. This order was passed on 9th September 1932 and court-fees were paid on 14th September. The defendants, the present applicants, thereupon have made this application for revision, alleging that the lower Court was wrong in allowing payment of court fees under Section 149, Civil P. C., and that it should have held that the application was not made in good faith.

(2.) THE real question at issue is not whether court-fees should be accepted, but is one of limitation, namely, whether on payment of court-fees the date of presentation of the plaint should be taken to be the date of presentation of the original application or the date on which court-fees were actually paid. The learned Counsel for the applicants contended that after the rejection of the application under Order 33, Rule 7, there was no application before the Court and therefore when court-fees were subsequently paid, the suit must be held to have been instituted when the fees were so paid and not on the date on which the application for leave to sue in forma pauperis was presented. This contention appears to me to be correct, and this view has been taken in Naraini Kuar v. Makhan Lal (1895) 17 All 526, Keshav Ramchandra v. Krishnarao Venkatesh (1896) 20 Bom 508 and Aubhoya Churn Dey v. Bissasswari (1897) 24 Cal 889. It is true that all those decisions were passed before the present Code of Civil Procedure was enacted and that in the former Code there was no section corresponding to Section 149 of the present Code, which gives the Court discretionary power to allow the person by whom court fees are payable to pay such fees, and that when permission is granted under that section the document, in respect of which such fee is payable, shall upon such payment have the same force and effect as if the fee had been paid in the first instance.

(3.) IN the present case it is true that the application for leave to pay court-fees was made only half an hour after the application for leave to sue as pauper was dismissed; but the order dismissing the application had been signed and delivered and was final, and therefore there was no proceeding before the Court. The application for leave to pay court-fees could not therefore be granted under Section 149, Civil P. C. I hold then that the order of the lower Court granting the plaintiffs non-applicants permission to pay court-fees was not under Section 149 and that the suit must be held to have been instituted on 14th September 1932, the date on which the court-fees were paid, and not on 10th August 1931, when the application for permission to sue as pauper was presented. This application for revision is therefore allowed. Costs of this application will be borne by the non-applicants. I fix pleader's fees at Rs. 25.