CHUDMAN SHAMRAO RANGARI Vs. BABJI DADUAPPA WANI

JUDGEMENT

(1.) THIS is an application for revision under Section 115, Civil P.C., against the lower appellate Court's order rejecting the application of the plaintiff applicant, for being allowed to appeal as a pauper, under the proviso to Order 44, Rule 1 ibid. The suit, which was for recovery of a debt, had been instituted by the plaintiff as a pauper under Order 33, Rule 1, Civil P.C., the application for permission so to sue having been made on 12th March 1940. The trial Court made an order on 3rd May 1941 under Order 33, Rule 7(8), Civil P.C., refusing to allow the plaintiff to sue as a pauper but side by side with this fact being noted in the order sheet of that date an order was made permitting him to pay court-fees. The material part of that order sheet is as follows: ...Order passed. Application for leave to sue in forma pauperis rejected. Case for 4th July 1941, for paying court-fee on the claim.

(2.) WHAT happened on 4th July 1941 will appear from the order sheet of that date which is as follows: Applicant with Mr. Jetha. Non-applicant as before. Applicant presents an application for extension of time to pay court-fee. I allow him one last chance to pay it. Case for 30th July 1941." On 30th July 1941 the plaintiff paid the required court-fee and the plaint was ordered to be registered. The defendants, who had throughout no objection against the plaintiff being allowed to pay court-fees, pleaded for the first time in the written statement that the suit must be regarded as instituted not on 12th March 1940 but on 30th July 1941 and was barred by time. The suit was tried on merits but the trial Court upheld the defendants' plea of limitation and dismissed the suit. Thereupon the plaintiff appealed on

(3.) THE trial Court's decision on the question of limitation would have been perfectly correct if at the very time of dismissing the application for leave to sue in forma pauperis, an order allowing the plaintiff to pay court-fee had not been made. Those cases in which it has been held that once the application for leave to sue in forma pauperis is dismissed the Court has got no power to allow the payment of court-fee and to renovate the plaint which accompanied the application, stand on an entirely different footing. That was the position which arose in Pratapchand v. Atmaram A.I.R. 1933 Nag. 237, Chunna Mal v. Bhagwant Kishore , Ma Saw Yin v. S.P.K.A.A.M. Firm A.I.R. 1937 Rang. 185 and Lala Mistry v. Ganesh Mistry A.I.R. 1938 Pat. 120. The case in Alopi Parshad v. Mt. Gappi A.I.R. 1937 Lah. 151 is also distinguishable because in that case when the application for leave to sue in forma pauperis was dismissed the Court merely made a remark that the plaintiff was at liberty to pay the court-fee but did not make any order at that time allowing him to do so which was done on an application subsequently made. The present case is exactly similar to the one in Bank of Bihar Ltd. v. Sri Thakur Ramchanderji Maharaj A.I.R. 1929 637 where it was held, as the head-note correctly brings out, as follows: that the document referred to in Rule 2 of Order 33 is a complete document consisting of an application for permission to sue as a pauper and a plaint, and that, therefore, the Court has jurisdiction under Section 149, Civil P.C., 1908, while refusing leave to sue in forma pauperis, to permit the requisite stamp to be paid on the plaint within a certain time and after it has been so done, the unstamped plaint will be deemed to have been validly presented on proper court-fee on the date it was originally filed. That is also what has been held in Mahadeo Gopal v. Bhikaji Vishram where at pp. 296-297 the following statement occurs: An application under Order 33, Rule 2, Civil P. C, for permission to sue as a pauper is required to contain particulars required in regard to plaints in suits. It is to be signed and verified in the manner prescribed for the signing and verification of pleadings by the Code, and is capable of being itself treated as a plaint. If the application is granted and the applicant is allowed to sue as a pauper, then the application becomes a plaint in virtue of the provisions of Order 33, Rule 8 and would be numbered and registered. Even before deciding whether to grant the application or not, the Court may, at any time during the pendency of the proceedings, treat the application as a plaint and allow the applicant to pay the requisite court-fees and give up his request to be allowed to sue as a pauper, as in the Privy Counoil case in Skinner v. Orde (78) 6 I.A. 126. Even if the Court decides to reject the application under Order 33, Rule 5, or to refuse to allow the applicant to sue as a pauper under Order 33, Rule 7, it may treat the application as an unstamped plaint and either before or at the time of passing the order under Rule 5 or Rule 7, it may in its discretion under Section 149 allow the applicant time to pay the requisite court-fees, and upon such payment within the time allowed, number and register the plaint. But in doing so, the Court should have regard to the provisions of Order 33, Rule 15 and make the payment of the costs mentioned therein a condition precedent. In all these cases, for the purposes of limitation, the suit will be deemed to have been instituted on the day on which the application for leave to sue as a pauper is made. In Chunna Mal v. Bhagwant Kishore one of the questions, which was referred to the Full Bench was: Whether while rejecting the application for permission to sue as a pauper the Court can under Section 149, Civil P.C., allow the applicant to pay the requisite court-fee and treat the application as a plaint? This was answered by Allsop J. in the affirmative but the majority took the opposite view. I agree respectfully with the learned Judges who decided the case Mahadeo Gopal v. Bhikaji Vishram , holding as they did, that the opinion Of Allsop J. in Chunna Mal v. Bhagwant Kishore was preferable to the majority view of Sulaiman C.J. and Bennet J. The opinion of Allsop J. was also accepted as sound in Lala Mistry v. Ganesh Mistry A.I.R. 1938 Pat. 120 which re-affirmed as sound the decision in Alopi Parshad v. Mt. Gappi A.I.R. 1937 Lah. 151 The trial Judge assumed quite wrongly that the latter case had not been followed in Sudhir Kumar v. Jagannath Marwari A.I.R. 1935 Pat. 193. The case in Biswa Nath Das v. Khejer Ali Biswa Nath Das v. Khejer Ali was one in which where the trial Court had not allowed, the plaintiff to pay court-fees, the learned single Judge upon an application for revision held purporting to follow Aubhoya Churn Dey Roy v. Bissesswari (97) 24 Cal. 889 that it was legally not competent to the Court dismissing an application for leave to sue in forma pauperis to allow the plaintiff to pay court-fees and turn the plaint accompanying the application as. a plaint in the suit. It is difficult to see how that decision can be taken as representing the view of the Calcutta High Court when the Division Bench of that Court had held once in Jagadeeshwaree Debee v. Tinkari Bibi and a second time in Kali Dasi v. Santosh Kumar Pal that the Court dismissing the application for leave to sue in forma pauperis, had that power which it could exercise, even where an interval had elapsed after such dismissal. But it is not necessary for the decision of the present case to go as far as that. The decision of the lower Courts on the question of limitation was thus contrary to law and the lower appellate Court had no justification for rejecting under the proviso to Order 44, Rule 1, Civil P.C., the application of the plaintiff for being allowed to appeal as a pauper. If the lower appellate Court had examined the question fully no other conclusion was possible but that the trial Court's decision on the question of limitation was contrary to law. In any case, the question was so far controversial as to have enabled the lower appellate Court to say that it 'saw reason to think that the decree was contrary to law.' The proviso to Order 44, Rule 1 did not require that an actual decision on any particular point of law arising in the case should have been taken as the lower appellate Court did. Sometimes it happens that a Court dismissing an application for leave to sue in forma pauperis does so under Order 33, Rule 5(d) by anticipating a decision on merits. In cases of that kind it has been held that the High Court had power to interfere and to set the matter right. The cases in Sumitra Devi v. Lal and Bhajja v. Muhammad Said Khan are instances in point. The case in Dargah Miskeenshah Pir v. Hardayal A.I.R. 1941 Nag. 330 turned on its own facts and I cannot regard it forbidding interference in revision absolutely and under all circumstances. It is unfortunate that the order of the lower appellate Court should have created a situation in which there remained no other alternative for me but to decide a question which could have more properly been decided when the appeal was heard in the lower appellate Court on merits. I allow the application for revision and I hold, reversing the lower appellate Court's order, that the plaintiff's application for being allowed to appeal as a pauper was not liable to be rejected under the proviso to Order 44, Rule 1, Civil P.C. The case is therefore remanded so that that application may be further proceeded with according to law. No order for costs.