BISWA NATH DAS Vs. KHEJERALI MOLLA

JUDGEMENT

(1.) This rule is directed against the order of the Third Munsif, Alipore, dated 23 December 1938, whereby he refused the petitioner permission to convert a plaint attached to an application to, sue in forma pauperis into a regular plaint with effect from the date of the presentation of his pauper application and directed that the petitioner's plaint should be registered with effect from the date of filing courts fees in the Court below and not with effect from the date upon which the pauper application was presented. The relevant facts connected with this matter are briefly as follows: On 11 April 1938 the petitioner applied in the Court of the learned Munsif to sue the opposite party in forma pauperis for the recovery of a sum of money alleged to be due to him by Khejer Ali Mollah, the opposite party, under a mortgage bond. The case was numbered as pauper case, 112 of 1938. While this particular case was pending, a similar application filed by the petitioner in case No. 88 of 1938 was dismissed by the learned Munsif on 31 October 1938, on the ground that the applicant had the necessary means to enable him to pay the court-fees due in respect of the relief sought by him in that case. Thereafter the requisite steps were taken in connexion with case No. 112 of 1938 to hear the matter under Order 33, Rule 7, Civil P. C. Hajiraa were duly filed but, on 5th November 1938, the petitioner applied for time which was granted until 26 November 1938, which day was fixed for the peremptory hearing of the case. On the latter date, the petitioner filed a further application for time in which he informed the Court that he did not think it proper to prosecute his application to sue in forma pauperis and asked that he might be allowed to carry on the suit by paying the proper court-fees, and by converting into a regular plaint the plaint which was filed with his pauper application. The learned Munsif on receipt of this application directed that the matter should be put up on 17 December 1938 for further hearing. On this date the petitioner filed two further applications; in the first of these applications he repeated the request contained in the petition which he had filed on 26th November 1938, and informed the Court that he had filed court-fees to the value of Rs. 90 payable on account of the relief sought by him in the mortgage suit. In the second application he asked that his original pauper application should be rejected and requested the Court to pass orders for the registration of the plaint attached to his pauper application on acceptance of the requisite court-fees. The learned Munsif heard the parties with reference to this matter and, on 23 December 1938, he then made the order against which this rule is directed.

(2.) It follows from the recital of the above mentioned facts that, as the matter stood before the learned Munsif on 17 December 1938, he had been asked by the petitioner (l) to reject the application to sue in forma pauperis which had been filed on 11 April 1938 and (2) to convert the plaint which was attached to and formed part of the original application into an ordinary plaint. It also appears to have been the wish of the applicant that the conversion should take effect from 11 April 1938 in order that the relief sought by him in the mortgage suit might not become time-barred under the law of limitation. The learned Munsif by his order dated 23 December 1938, granted the petitioner's request to the effect that his pauper application should be rejected. Prom the circumstances in; which the order was made it must be taken to be an order under Order 33, Rule 7 (3), Civil P. C., refusing to allow the applicant to sue as a pauper. The learned Munsif also directed that the court-fees should be accepted with effect from 17 December 1938 and not from the earlier date. This order therefore, as it stands, would probably have the effect of making the petitioner's mortgage suit time-barred, and it is on this account that he is anxious to have it set aside.

(3.) The question for consideration is whether, after refusing the petitioner's application to sue as a pauper on payment of the requisite amount of court-fees due in respect of the relief sought by the petitioner, the learned Munsif should have allowed the petitioner to convert his pauper application into a plaint with effect from the date on which the application to sue in forma pauperis was filed. In the first place, it may be mentioned that an unstamped plaint was attached to the original pauper application on 11 April 1938. Order 33, Rule 2, Civil P. C., requires that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits. Having regard therefore to the express requirements of this Rule, the unstamped plaint must be regarded as an essential part of the application to sue in forma pauperis, which standing alone did not contain the essential particulars which the law requires in the case of plaints. The decision in this case mainly depends upon the view which should be taken of the effect of an order refusing art application to sue in forma pauperis under Order 33, Rule 7 of the Code and we are not directly concerned with the effect of a summary order of rejection under Rule 5. After refusing a pauper application is it open to the Court to treat the original application as a plaint in the suit or after such refusal, will it be necessary for the unsuccessful applicant to institute a fresh suit in the ordinary way? The views which have been taken with regard to this question in this Court and in other High Courts are by no means uniform. In Aubhoya Churn Dey V/s. Bisseswari (1897) 24 Cal 889 it was held that, after the rejection of a pauper application, the Court had no power to give time for the presentation of a plaint or to treat the old application as a plaint in the suit, with the result that, where an application to sue in forma pauperis is rejected, and the applicant seeks to deposit the full court-fee in respect of the relief sought, the suit must be considered for the purposes of limitation to have been instituted only after the payment of the requisite court- fees and not at the date of the presentation of the petition to sue as a pauper. The learned Judges considered the effect of certain observations made with reference to pauper applications by the Judicial Committee of the Privy Council in Skinner V/s. Orde (1878) 2 All 241 but they held that that case was clearly distinguishable because in the matter before their Lordships of the Judicial Committee there was no order rejecting the application. Although the learned Judges in Aubhoya Churn Dey V/s. Bisseswari (1897) 24 Cal 889 in the course of their judgment refer to the order of 16 May 1891 as an order of rejection the order in question appears to have been made under Section 409 of the Code of 1882, which corresponds to Order 33, Rule 7 of the new Code. It was not therefore an order of summary rejection but an order refusing the applicant permission to sue as a pauper.