CHUNNA MAL Vs. BHAGWANT KISHORE

JUDGEMENT

(1.) On the facts as given in the order of reference it appears that the opposite party filed an application for permission to sue as a pauper on 17 August 1934. There was some inquiry as to his pauperism and the application was opposed by the defendant as well as by the Government Pleader. On 29 September 1934, the Court held that the applicant was not a pauper and rejected the application with costs. On 1 October 1934 the applicant filed another application purporting to be under Order 47, Rule 1, Civil P.C., for review of the previous order on the ground that some evidence had not been recorded and that he was in fact a pauper, and also asking that the Court should have allowed the applicant time to deposit the necessary court-fee. The learned Munsif came to the conclusion that there was no case made out for review of the order so far as it held that the applicant was not a pauper and should not be allowed to sue as a pauper, but ordered that he should be allowed to deposit the court-fee by 30 November 1934. The defendant has come up in revision against this order challenging its legality. Although there has been no direct conflict of opinion in this Court, there is a divergence of opinion as regards some other High Courts. But the preponderance of opinion is undoubtedly in favour of the present applicant. The following questions have therefore been referred to us for answers: (1) 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. (2) Whether after rejecting the application for permission to sue as a pauper, can the Court by a separate and subsequent order allow the applicant to pay the requisite court-fee under Section 149, Civil P.C., and treat the application as a plaint.

(2.) It may in one sense be said that the case in Naraini Kuar V/s. Makhan Lal (1895) 17 All 526, is an authority for the proposition that where an application for leave to sue as a pauper has been refused the Court has no power to grant time to the plaintiff to deposit the Court-fee later.

(3.) The case in Abbasi V/s. Nanhi Begam (1896) 18 All 206, is somewhat on the same lines. But there is also no doubt that at that time the view prevailing in this Court was that after a plaint which is insufficiently stamped is filed in Court, there was no provision under which the Court could allow further time for making good the deficiency: see Balkaran Rai V/s. Gobind Nath Tiwari (1890) 12 All 129. Now we have Section 149, Civil P.C., which expressly empowers a Court to allow a person by whom court-fee is payable on a document filed in Court to pay the amount within a time fixed by it. Following the principle laid down in Rajendra Prasad v. Gopal Prasad (1929) 115 IC 678, another Bench of the Patna High Court in Sudhir Kumar Choudhuri V/s. Jagannath Marwari 1935 Pat 193, has expressed the same view. This was also the view expressed by the Bombay High Court in Keshav Ramachandra V/s. Krishnarao Venkatesh (1896) 20 Bom 508, and the Calcutta High Court in Aubhoy Churn Dey V/s. Bisseswari (1897) 24 Cal 889, and the Nagpur Judicial Commissioner's Court in Pratapchand V/s. Atmaram 1933 Nag 237. On the other hand the Madras High Court in Maria Thangathammal V/s. Iravatheswara Iyer 1916 28 IC 504 and Balaguru Naidu V/s. Muthurathnarn Iyar 1924 76 IC 767, has taken a contrary view. A Bench of the Patna High Court in Bank of Behar, Ltd. v. Ramchanderji Mabaraj 1929 Pat 637 also expressed a similar view which was not followed subsequently in Patna itself. Recently the Calcutta High Court in Jagadiswari Debi V/s. Tinkari Bibi 1936 Cal 28, has held that court-fee can be allowed to be paid even if the applicant is not allowed to sue as a pauper.