Bhairu Dan v. Ratan Lal — 1952 DIGILAW 126 (RAJ)

Wanchoo, C.J.—This is a revision by Lahar Chand and others against the order of the District Judge of Bikaner and has arisen in the following circumstances : 2. In 1928, Ratan Lal opposite party and his brother Ranchhor Dass (now dead) obtained the monopoly to start a wool press from the former State of Bikaner. As they had no capital, they took a loan from Kaluram Chauthmal. There was dispute in that connection and an arbitration award was made in June, 1930. According to that award, Ratanlal and his brother were to pay Rs. 73,000/- to Kaluram Chauthmal within 15 days. If the payment was made, the press would become the property of Ratanlal and his brother; but if payment was not made, Kaluram Chauthmal were to pay Rs. 10,000/- to Ratanlal and his brother and retain the press as owners. Ratanlal and his brother had no money. So they took a loan of Rs. 73,000/- from Bhairu Dan to pay off Kaluram Chauthmal. A further sum of Rs. 11,000/-was also taken as loan from Bhairu Dan, and Kaluram Chauth-mal were paid off. The case of Ratanlal and his brother with respect to this transaction is that it was a mortgage. The case of the defendants-applicants who are representatives of Bhairu Dan is that the press was sold out and out for Rs. 84,000/-. Soonafter, Ratanlal and his brother applied to the State for recording the sale of the press in the name of Bhairu Dan and prayed for a change of the patta. On the 17th June, 1930, possession of the press was made over to Bhairu Dan but two rooms were retained by Ratan Lal and his brother as servants of Bhairu Dan, (though the point whether they were servants of Bhairu Dan is in dispute). On the 17th of August, 1930, the patta of the press was granted by the State of Bikaner to Bhairu Dan and was notified in the Bikaner Gazette on the 18th of October, 1930. The defen-dantes case is that Ratan Lal and his brother were dismissed in December, 1930. It is the admitted case of the parties that Bhairu Dan was put in possession of these two rooms also on 15th of February, 1934. The defen-dantes case is that Ratan Lal and his brother were dismissed in December, 1930. It is the admitted case of the parties that Bhairu Dan was put in possession of these two rooms also on 15th of February, 1934. On the 5th of November, 1936, Ratan Lal and his brother filed a petition in the Bikaner High Court for leave to sue in forma pauperis and for recovery of possession of the press. On the 29th of April, 1937, the High Court of Bikaner held that Ratan Lal and his brother were paupers. It was also held that there was no cause of action. The petition was dismissed but two months time was allowed to them to make good the court-fee if they wanted to proceed with the suit. On the nth of June, 1937, Ratan Lal and his brother went in revision against this order. This revision was dismissed on the 3rd of March, 1938. There was then an appeal to the Judicial Committee of the former State of Bikaner. This appeal was also dismissed on the 19th of September, 1938. Then it is said that there was a fariyadi petition before His Highness the Maharaja of Bikaner. The date of this petition is not known but it is said to have been made sometime in 1943. An order is said to have been passed on this fariyadi petition on the 31st of March, 1949. By this order, the His Highness of Bikaner waived limitation in this case and allowed Ratan Lal and his brother to bring a suit on or before the 6th of April, 1949. On the 5th of April, 1949, Ratan Lal filed a petition in the court of the District Judge of Bikaner praying that he be allowed to sue in forma pauperis and the cause of action was based on the dispossession of the two rooms on the 15th of February, 1934. This petition was disposed of by the District Judge on the 9th of December, 1950. By his order of that date, the District Judge held that in view of O. XXXIII r. 15 C.P.C., no second petition for leave to sue in forma pauperis lay. He, therefore, dismissed this petition; but by the same order he directed the applicants to make good the court-fee within two months in order that the suit be registered. By his order of that date, the District Judge held that in view of O. XXXIII r. 15 C.P.C., no second petition for leave to sue in forma pauperis lay. He, therefore, dismissed this petition; but by the same order he directed the applicants to make good the court-fee within two months in order that the suit be registered. The present revision is directed against that part of the order by which the District Judge ordered Ratan Lal to make good the court-fee within two months. The case came up for hearing before a learned single Judge of this court on the 18th of July, 1951, and he has referred it to a Division Bench by the following order :- "This revision has been argued at some length but since the question involved is of importance and there is also divergence of authorities, it appears to be fit and proper that it should be disposed of by a larger Bench. The question invol-ved may be stated as follows:— "Whether while rejecting the application for permission to sue as a pauper under O. XXXIII, r. 15 C.P.C., the court is competent under sec. 149 C.P.C. to treat the application as a plaint and allow the applicant to pay the requisite court-fee stamp". In the circumstances mentioned above, this revision is referred for a decision to a Division Bench. It may be mentioned that costs incurred by Ratan Lal and his brother in the previous application were deposited on the 20th of February, 1951, and the court-fee was made good on the 1st of February, 1951. 3. The main contention on behalf of the applicants is that the District Judge had no jurisdiction, after he had dismissed the petition for leave to sue in forma pauperis, to give time for making good the court-fee, and as such, that part of the order should be set aside. The argument on behalf of the opposite party is two fold. In the first place it is urged that the document which was filed in the court on the 5th April, 1949, was not a petition for leave to sue in forma pauperis, but was a plaint with deficient court-fee. In the second place, it is urged that even if it was an application for leave to sue in forma pauperis, the District Judge had jurisdiction to grant time and his order is, therefore, correct. 4. In the second place, it is urged that even if it was an application for leave to sue in forma pauperis, the District Judge had jurisdiction to grant time and his order is, therefore, correct. 4. We shall first deal with the question whether the document which was presented before the District Judge of Bikaner on the 5th of April, 1949, was a plaint though it was deficiently stamped, or whether it was a petition for leave to sue in forma pauperis. The document is described as a suit for possession of the woollen press and for appointment of a receiver and recovery of mesne profits. It is on this description that the argument has been advanced that the document is a plaint. According to O. IV, r. 1 C.P.C., every suit is instituted by presenting a plaint in the form prescribed in O. VII, r. 1 of the Code of Civil Procedure, and sec. 6 of the Indian Court Fees Act provides that no document of any kind specified as chargeable in the first or second schedule to the Act shall be filed or received unless there be paid in respect of such document a fee of an amount not less than that indicated in the schedules as the proper fee for such document. According to the valuation of the suit stated in the document a fee of Rs. 7,500/- was required for the plaint in a suit claiming reliefs as aforesaid. For a person who is unable to pay the required court-fee, special provision is to be found in O. XXXIII of the Code of Civil Procedure and he can be allowed to sue as a pauper on application in that behalf. The contents of the application are required to be the same as plaint in such suit and it is to be signed and verified in the manner prescribed for the signing and verification of pleadings and is to be accompanied by a schedule of any movable or immovable property belonging to the applicant with the estimated value thereof. It is to be presented by the applicant in person who may be examined by the court and it may be rejected under conditions mentioned in rule 5 of the Order XXXIII of the Code, or set down for hearing whereafter the court is either to allow or refuse to allow the applicant to sue as a pauper. It is to be presented by the applicant in person who may be examined by the court and it may be rejected under conditions mentioned in rule 5 of the Order XXXIII of the Code, or set down for hearing whereafter the court is either to allow or refuse to allow the applicant to sue as a pauper. Rule 8 of the same Order provides that if the application is granted, it is to be numbered and registered and is to be deemed the plaint in the suit and the suit is to proceed thereafter in all respects as a suit in an ordinary manner except with regard to court-fees in respect of matters mentioned in that rule. Thus, on the application for permission to sue as a pauper being allowed, the application is converted into a plaint and the requisite condition for institution of a suit is fulfilled in the case of a pauper not by presenting a plaint but by filing an application for permission to sue as a pauper; and it is especially provided in the explanation to sec. 3 of the Limitation Act that a suit is instituted in ordinary cases when the plaint is presented to the proper officer but in the case of a pauper when the application to sue as a pauper is made. The heading of this document is, therefore, not conclusive to show that the document is a plaint and we have to look to the contents of the document itself. When we do this, it becomes quite clear that it was not a plaint but only an application for permission to sue as a pauper. In the very first paragraph of the document, it is mentioned that the plaintiff is a pauper and is not possessed of sufficient means to pay the court-fees of the suit and whatever movable or immovable property he is possessed of is mentioned in schedules 1 and 2 duly verified and annexed to the plaint. Paragraphs 2 to 20 contain various facts entitling him to come to court and in paragraph 21 the valuation for purposes of jurisdiction is mentioned as rupees five lacs and although it is mentioned that valuation for purposes of court-fees is Rs. 7,500/-, what was realy meant was that the court-fees required were Rs. 7,500/-. Paragraphs 2 to 20 contain various facts entitling him to come to court and in paragraph 21 the valuation for purposes of jurisdiction is mentioned as rupees five lacs and although it is mentioned that valuation for purposes of court-fees is Rs. 7,500/-, what was realy meant was that the court-fees required were Rs. 7,500/-. In paragraph 22, it was mentioned that the plaintiff was a pauper and the suit was brought in forma pauperis on a court-fee stamp of Rs. 3/-. Paragraph 23 related to the reliefs sought by the plaintiff. The document fulfilled all the conditions required for an application for permission to sue as a pauper but if it was only intended to serve as a plaint, it would not have been necessary either to say that the plaintiff was a pauper or to produce schedules of the property in the possession of the applicant with the estimated value thereof since the other requirements were common both for a plaint and a petition for permission to sue as a pauper. In paragraphs 14, 15 and 16 of the document it is mentioned that the plaintiff had on an earlier occasion along with his brother filed a suit in the High Court of Bikaner in forma pauperis and he was held to be a person unable to pay the court-fees and was granted two months time to pay up the court-fees, but he had submitted a fariyadi petition to His Highness against the final order of the Judicial Committee and that His Highness the Maharaja of Bikaner had been pleased to pass an order on the 31st of March, 1949, that the law of Limitation will not apply if the plaintiff instituted a suit before the 6th of April, 1949. Now if the plaintiff did not want to make an application for permission to sue as a pauper, he had either to file a plaint on full court-fees or to file a plaint with such court-fees as he was able to obtain and to apply to the court under sec. 149 C.P.C. for grant of some time to make up the deficiency of court-fee. This was not done. On the other hand, the proceedings to which a reference will be made show that the court and the parties took it that this document was only an application for leave to sue as a pauper. 5. 149 C.P.C. for grant of some time to make up the deficiency of court-fee. This was not done. On the other hand, the proceedings to which a reference will be made show that the court and the parties took it that this document was only an application for leave to sue as a pauper. 5. The document was presented personally on 5th April, 1949, and the office report is that the valuation required a court-fee of Rs. 7,500/- but as the applicant wanted to proceed in forma pauperis he had paid Rs. 3/- as court-fee which was sufficient. On the 9th April, the learned single Judge of the Bikaner High Court before whom the matter was listed thought that the application was liable to rejection under O. XXXIII, r. 5, but on hearing further arguments of counsel for the petitioner directed the examination of the petitioner under O. XXXIII, r. a of the Code of Civil Procedure, whereafter a notice was issued to the opposite party and the Government pleader to appear in case the poverty of the plaintiff was to be contested. Both the Government pleader and the opposite party urged that the plaintiff was not a person who had no means to pay the court-fees and inter alia raised a plea that the present application was not maintainable in view of the rejection of a similar application on an earlier occasion. It is obvious, therefore, that it is too late now to contend that the document was a plaint and not an application for permission to sue in forma pauperis. 6. We are, therefore, satisfied that the document which was presented in the court on the 5th of April, 1949, was not a plaint but an application under O. XXXIII, r. 2 of the Code and the order that was passed by the court below, asking Ratan Lal to make good the court-fee, cannot be treated merely as an order under sec. 149 C.P.C. requiring the party to make good the court-fee on a plaint which had been filed with deficient court-fee. 7. We now turn to the second question viz., whether the order asking Ratan Lal to make good the court-fee was within the jurisdiction of the court below. This point has been elaborately argued before us and a large number of authorities has been cited on the interpretation of O. XXXIII r. 15. 7. We now turn to the second question viz., whether the order asking Ratan Lal to make good the court-fee was within the jurisdiction of the court below. This point has been elaborately argued before us and a large number of authorities has been cited on the interpretation of O. XXXIII r. 15. There is, however, one feature which is common to all these authorities viz., that they were dealing with a case of a first application for permission to sue as a pauper. The present case, however, is that of a second application for permission to sue as a pauper, and is to that extent different from the cases dealt with in these authorities. We do not think it necessary, therefore, to deal with all these authorities in detail. It is enough to say that there is a difference of opinion among the various High Courts on the question whether in the case of a first application for permission to sue as a pauper, the court has or has not the jurisdiction while refusing to allow the application to grant time for making good the court-fee. 8. There are three possibilities when an application for permission to sue as a pauper is made. In the first place, the application for permission to sue as a pauper may not be disposed of at all and the party may like to make good the court-fee without getting the question whether he is a pauper or not decided. Such a case is covered by the decision of the Privy Council in Stuart Skinner alias Nawab Mirza vs. William Orde and others (I.L.R. 2 All. 153). It has been held in that case that where, pending inquiry into his pauperism, the party pays the court-fee, and his petition is allowed upon such payment to be numbered and registered as a plaint, his suit shall be deemed to have been instituted from the date when the application for permission to sue as a pauper was filed and limitation runs against him only up to that time. 9. The second possibility is that the court refuses to allow the applicant to sue as a pauper under Order XXXIII r. 7, but does not pass any order permitting the party to make good the deficiency in court-fee at the same time. 9. The second possibility is that the court refuses to allow the applicant to sue as a pauper under Order XXXIII r. 7, but does not pass any order permitting the party to make good the deficiency in court-fee at the same time. It has been held by almost all the High Courts (though here and there discordant decisions exist) that in such a case the court has no jurisdiction later on to grant time to the party to make good the deficiency in court-fee. 10. In Aubhoya Churun Dey vs. Bisseswari (I.L.R. 24 Cal. 889) the application was rejected on the 16th May, 1891. The Civil Judge subsequently by an order of the same date allowed time within which to pay the necessary court-fee stamps. It was held that the court had no power to do so. A contrary view was taken in Jagdiswari vs. Tinkari Bibi (A.I.R. 1936 Cal. 28) but Edgley, J. while sitting alone in A.I.R. 1939 Cal. 394 preferred to follow the decision in 24 Calcutta 889 after a careful consideration of the entire case law on the subject. 11. In Mahadev Gopal vs. Bhikaji Viehram (A.I.R. 1943 Bom. 232), the Bombay High Court revised the several conflicting decisions of the court and after a careful consideration of the entire case law held that if once the court passes an order refusing to allow the applicant to sue as a pauper under O. XXXIII, r. 7 without keeping the application alive as an unstamped plaint and granting the applicant time to pay the requisite court-fee the proceedings come to an end and it has no power to do so by a separate and subsequent order. Sen, J. in A.I.R. 1944 Bom. 63 sitting singly also took the same view. 12. The same view was taken in Lala vs. Ganesh (A.I.R. 1938 Pat. 120), Alopi Prashad vs. Mst. Gippi (A.I.R. 1937.Lab. 151), Pratapchand vs. Atma-ram (A.I.R. 1933 Nagpur 237), Ma Saw Yin vs. 8. P. K. A. A. M. Firm (A.I.R. 1937 Rangoon 185). 13. In Allahabad a more strict view has been taken by the majority of Judges composing the Full Bench in Chunna Mal vs. Bhagwant Kishore (A.I.R. 1936 All. 120), Alopi Prashad vs. Mst. Gippi (A.I.R. 1937.Lab. 151), Pratapchand vs. Atma-ram (A.I.R. 1933 Nagpur 237), Ma Saw Yin vs. 8. P. K. A. A. M. Firm (A.I.R. 1937 Rangoon 185). 13. In Allahabad a more strict view has been taken by the majority of Judges composing the Full Bench in Chunna Mal vs. Bhagwant Kishore (A.I.R. 1936 All. 584) (which will be further referred to hereafter) but all the Judges were agreed that where the proceedings based on the application come to an end by an unconditional order refusing to allow the application to sue as a pauper the court cannot by a separate and subsequent order allow the applicant to pay court fee under sec. 149 C.P.C. and treat the application as a plaint. 14. The view taken by the Madras High Court is that the plaint embodied in the application remains unaffected by the refusal of the application for leave to sue as a pauper and the court can thereafter permit the court-fee to be paid under sec. 149. Balaguru Naidu vs. Muthu Ratnam (A.I.R. 1924 Mad. 118) and Sundarathammal vs. Paramaswami Asari (A.I.R. 1933 Mad. 883). A discordant note is however found in Uthaman vs. T. Muhamad Usat (A.I.R. 1939 Mad., 316) where King, J. held that sec. 149 cannot empower any court after refusing under O. XXXIII, r. 7 to allow a petitioner to sue in forma pauperis to pay court-fee and treat his application as a plaint. In a more recent case Nalliboyiner vs. Kathu Surayya (A.I.R. 1950 Mad. 50) Mark, J. sitting singly observed that he was "really unable to see any statutory support for the practice which has grown up of giving pauper applicants after the rejection of their petitions to sue in forma pauperis time to pay court fees and allowing them in fact to sue without first paying the costs of those opposing the pauper applicants." 15. The third class of cases consists of those in which while refusing to allow the party to sue as a pauper under O. XXXIII, r. 7, the court grants time for making good the deficiency in court-fee. There is considerable difference of opinion among the various High Courts on this question. The leading case on the point in favour of the applicants is Chuna Mal vs. Bhagwant Kishore (A.I.R. 1936 All. 584) which was a Full Bench decision. There is considerable difference of opinion among the various High Courts on this question. The leading case on the point in favour of the applicants is Chuna Mal vs. Bhagwant Kishore (A.I.R. 1936 All. 584) which was a Full Bench decision. In that case it was held that in view of the provisions of O. XXXIII, r. 15, the court had no power even while refusing to give leave to sue under O. XXXIII, r. 7 to grant time for making good the deficiency in court-fee. One of the Judges, Allsop, J., composing the Full Bench, however, dissented and was of the view that if the order granting time for making good the deficiency in court-fee was made while refusing the application for leave to sue as a pauper, the court had jurisdiction to do so. Some of the other High Courts have taken a view similar to that found in the minority judgment in the Allahabad Full Bench cited above and reference may be made to Bank of Bihar vs. Thakur Ramchandraji (A.I.R. 1929 Pat. 637), Mahadev vs. Bhibaji (A.I.R. 1943 Bom. 292), Chudaman vs. Babaji (A.I.R. 1944 Nag. 357), Ram Het Gir vs. Banwari Lal (A.I.R. 1938 Lah. 41), and Mst. Jinatim Nisa vs. Mst. Idrakim Nisa (A.I.R. 1950 Orissa 183). But as we have pointed out above, all the authorities which have been cited and which we consider unnecessary to mention further, refer to cases where the first application for leave to sue as a pauper was being refused. The present case is, however, of a second application and we have to see the effect of O. XXXIII, r. 15 on a second application of this kind. 16. Order XXXIII, r. 15 reads as follows: "An order refusing to allow the application to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right provided that he first pays the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper." 17. A bare perusal of this rule shows that a second application for leave to sue as a pauper does not lie at all, if a previous application of the like nature in respect of the same right to sue has been refused under O. XXXIII, r. 7. The finding of the District Judge is that the first application was dismissed under Order XXXIII, r. 7 and the present application is in respect of the same right to sue. In effect, therefore, on this finding of the District Judge, which has not been challenged before us, there could be no valid petition for permission to sue as a pauper before the court as the party had no right to file such a document. 18. It remains to consider how the opposite party will be affected if his petition dated 5th April, 1949, be left out of consideration. 19. As discussed above an order to grant time to pay court-fee after the disposal of an application under O. XXXIII, r. 7 has been held by almost all High Courts to be incompetent and we respectfully agree with that view. The position in the present case is even worse than granting time subsequently once the application has been refused under O. XXXIII, r. 7 of the Code and we are, therefore, of opinion that the court had no power to grant time while rejecting the application of the opposite party on the ground that it was not maintainable under O. XXXIII, r. 15 of the Code. 20. We take it that the question that has been referred to us is only about a subsequent application which is dismissed under O. XXXIII, r. 15 and not about the first application which may either be rejected under O. XXXIII, r. 5 or refused under O. XXXIII, r. 7. Treating the question, therefore, as referring only to subsequent applications which are rejected under O. XXXIII, r. 15, we are clearly of the opinion that while rejecting a subsequent application for permission to sue as a pauper under O. XXXIII, r. 15, the court is not competent under sec. 149 of the Code of Civil Procedure to allow the applicant time to pay the requisite court-fee. 149 of the Code of Civil Procedure to allow the applicant time to pay the requisite court-fee. We should, however, like to make it clear that we are not deciding in this case what the powers of the court are in this respect while rejecting a first application under O. XXXIII, r. 5 or refusing such application under O. XXXIII, r. 7. We may also point that we are expressing no opinion on the question whether the court-fee having been paid and costs having been deposited, the court can treat the suit as having been filed on the date on which the court-fee was paid or the costs were deposited. 21. We, therefore, allow this revision and set aside that part of the order of the lower court by which Ratan Lal was ordered to pay court-fee within two months for registering the suit. The applicants will get their costs from Ratan Lal, opposite party.