VAMANRAO LALLUBHAI Vs. PRANLAL BHAGWANDAS

JUDGEMENT

(1.) The petitioner made an application in the Court of the First Class Subordinate Judge, Surat, for leave to sue in forma pauperis. In his application he gave the particulars required in regard to plaints in suits and filed a schedule of the moveable and immoveable property belonging to him and the estimated value thereof and he signed and verified the same, as required by Order XXXIII, Rule 2, Civil Procedure Code, 1908. Notice was issued to the Government Reader and the opponents under Order XXXIII, Rule 6. The learned Subordinate Judge found that, though the petitioner had no means to pay the court-fees, his application did not disclose any subsisting cause of action. He, accordingly, dismissed the application with costs, apparently under Order XXXIII, Rule 7(3). The petitioner then filed the present civil revision application, alleging inter alia that the opponents having admitted his pauperism the lower Court was wrong in going into the question as to what would be the effect of the previous proceedings and in holding : that the suit would be barred by res judicata. He, accordingly, prayed (1) that the lower Court's order be set aside and (2) that he be allowed to proceed with his suit on payment of proper court-fees. Mr. Justice N.J. Wadia passed the following order :- Rule, limited to the question whether time should have been given to pay proper court-fees. This rule has now come up for hearing. It seems to me clear that Mr. Justice N.J. Wadia has rejected the application so far as the prayer for the setting aside of the lower Court's order is concerned and that it has been admitted only for the consideration of the question whether thereafter the petitioner should be allowed to pay proper court-fees and to proceed with his suit in the ordinary manner.

(2.) The learned advocate for the petitioner has contended that this Court should exercise its discretion in his favour under Section 149 of the Civil Procedure Code. That section reads thus :- Whether the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

(3.) This application raises a question on which there is a conflict of views in the different High Courts, In some of the decisions it has been held that the Court has power to treat an application for leave to sue as a pauper which has been refused as an unstamped plaint and to permit the requisite court-fee to be paid within a time to be fixed by the Court (Bank of Bihar Limited V/s. Sri Thakur Ramchanderji Maharaj (1929) I.L.R. 9 Pat. 439, Jagadeeshwaree Debee V/s. Tinkarhi Bibi (1935) I.L.R. 62 Cal. 711 and Kali Dasi Dasi V/s. Santosh Kumar Pal [1939] 1 Cal. 112); while in other cases it has been held that the application can only be treated as a plaint if it is granted, but that if it is refused, the only remedy open to the applicant is that provided by Order XXXIII, Rule 15, i.e. the filing of a fresh suit after first paying the costs incurred by the Provincial Government and by the opposite party in opposing his application for leave to sue as a pauper. [Aubhoya Churn Dey Roy V/s. Bissesswari (1897) I.L.R. 24 Cal, 889, Biswa Nath Das V/s. Khejer Ali Molla [1939] 2 Cal. 68, Chunna Mal V/s. Bhagwant Kishore [1937] All. 22, F.B. and Lala Mistry V/s. Ganesh Mistry. (1937) I.L.R. 17 Pat. 281]