BIR RAM Vs. LACHMI RAI

JUDGEMENT

(1.) This is an application in revision against a decree passed by a Small Cause Court Judge dismissing the plaintiff's suit on the ground that the plaintiff not having paid the costs incurred by the Government and by the opposite party in opposing an application made by the plain, tiff to sue in forma pauperis was not entitled to maintain the present suit. The facts that have given rise to the present application are as follows: The plaintiff-applicant filed an application for permission to sue as a pauper. According to the application the claim against the defendant- opposite party was for a sum of Rs. 500 and odd. The application was opposed both by the Government and by the defendant and the learned Small Cause Court Judge on 18 May 1935 dismissed the application with costs , but directed that "the court-fee shall be paid within two weeks and the plaint will then be registered". No formal order embodying the decision of the learned Judge was however prepared. The plaintiff then on 31 May filed an application for the amendment of the plaint and prayed that he be allowed to reduce his claim from a sum of Rs. 500 and odd to Rs. 249-8-0 and on the same date paid the requisite court-fee on the amount of the reduced claim. The application for amendment was opposed by the defendant and the learned Judge rejected that application.

(2.) The plaintiff came up in revision to this Court against the order of the Small Cause Court Judge rejecting the application for amendment. The revision application was allowed by a learned Judge of this Court and the case was sent back to the Small Cause Court Judge with the direction that he should allow the application for amendment and decide the case according to law. On receipt of the record, the learned Small Cause Court Judge allowed the application for amendment. The defendant then filed an additional written statement in which, for the first time, he pleaded that as the plaintiff had not paid the costs incurred by the Government and by him in successfully opposing the application for permission to sue as a pauper, the suit was not maintainable and in view of the provisions of Order 33, Rule 15, Civil P.C., and the Full Bench decision of this Court in Shiam Sunder Lal V/s. Mt. Saviti Kunwar , the learned Small Cause Court Judge gave effect to this contention and dismissed the suit. In my judgment, the decision of the learned Judge of the Court below is contrary to law and cannot be sustained. Order 33 provides that the refusal of an application for permission to sue as a pauper is no bar to the institution of a suit by the applicant in the ordinary manner provided that he first pays the costs (if any) incurred by the Government and by the opposite party in opposing his application for leave to sue as a pauper.

(3.) This Proviso is mandatory and it was held in the Full Bench case referred to above that where a plaintiff has been un-successful in an application for permission to sue in forma pauperis and the Court has awarded costs to the Government and the opposite party, these costs must be paid prior to the filing of the plaint which commences the suit; and where the costs have not been paid or deposited prior to the institution of a suit, a Court is bound to dismiss the suit. But the Full Bench further laid down that: Where the Court in dismissing the application has either disallowed costs or made no order as to costs, he is entitled to maintain his suit as an ordinary litigant without making any payment to the Government or to the opposite party in respect of the costs incurred in opposing the application.