PRAKASH NARAIN, J: ( 1 ) THE plaintiff filed a suit for declaration to the effect that defendant No. 1 did not become Mutvalli ofthe waqf properties of Hazi Abdul Quyyum situate at Himaltonroad, Delhi, either on the basis of the Toliatnama of 15/09/1947 or otherwise under the provisions of the Mohammaden Law. Aconsequential relief is sought that defendant No. 1 be restrained byan appropriate order from evicting or dispossessing the plaintiffs in pursuance of order of the Rent Controller dated 31/08/1960, passed inrent Control Case No. 1684 of 1959 entitled Abdul Haq Pracha v. Qutub Uddin and others. The property in respect of which the injunctionis sought is Shop No. 648, Himalton Road, Delhi. It is contended thatthe said order of Rent Controller is a nullity, having been passedwithout jurisdiction. ( 2 ) THE suit has been resisted on various grounds, inter alia, that itwas not properly valued for the purposes of court-fees and no propercourt-fees has been paid. Prithvi Raj, J. by his order dated 10/05/1972 held that the suit was not properly valued for the purposes ofcourt-fees and he directed that the plaintiff should make up thedeficiency in court-fees within one month. This led the plaintiffs tofile Pauper Application No. 6 of 1972. ( 3 ) IT has been contended by the plaintiffs/applicants that they arenot possessed of sufficient means to pay court-fees on the valuationof Rs. 55,000 and that they may be allowed to continue the suit informa pauperis. The application has been resisted by the defendantswho have contended that the application is not in proper form asprescribed by Order 33 rule 2 Civil Procedure Code. , that the plaint in suit No. 302of 1972 must be rejected under Order 7 rule II Civil Procedure Code for noncompliance with the order of court dated May 10, 1972, it is notadmitted that the plaintiffs were unable to pay the court-fees; andthat there is no provision in law to permit a suit already filed to becontinued as a suit in forma pauperis. It has also been contendedthat there is no subsisting cause of action and so, also the applicationis liable to be dismissed. The pleas of the defendants have been. traversed by the plaintiffs/applicants. On the pleadings of the partiesin this application, B. C. Misra, J. settled the following issues:- "1. It has also been contendedthat there is no subsisting cause of action and so, also the applicationis liable to be dismissed. The pleas of the defendants have been. traversed by the plaintiffs/applicants. On the pleadings of the partiesin this application, B. C. Misra, J. settled the following issues:- "1. Whether the petitioner s application for leave to proceedwith the suit in forma pauperis is in accordance withorder 33 rule 2 Civil Procedure Code ? O. P. petitioner. 2. Whether in view of the pendency of the suit, the petitiotier:)Cannot claim the benefit of Order 33 Civil Procedure Code so as to proceed with their suit in forma pauperis? O. P. Respondent. 3. What is the effect of the petitioners not complying withthe order of the Court dated 10th of May, 1972, allowing them to pay the deficit court-fees?" ( 4 ) AFTER the issues were settled it was conceded on behalf of defendant No. 1 that the plaintiffs were paupers and were unable topay court-fees. The only contest, therefore, that remained betweenthe parties was that the application was not maintainable and leaveto continue the suit in forma pauperis should not be granted in thefacts and circumstances of the case. The parties agreed that no evidence was necessary and so, the matter was posted for arguments. ( 5 ) THE issues as settled do not really bring out the controversy between the parties. Learned counsel are agreed that the real controversy between the parties is as follows:- (A) Where a suit- has been resisted as an ordinary suit andthe plaintiff does not pay the deficit in court-fees, thoughgiven time, but applies for permission to continue thesuit as a pauper, can such an application be entertained? (B) Whether there is any subsisting cause of action disclosedby the petition of plaint, if the same is treated as anapplication to sue as a pauper? In other words, whetherthe plaint is not liable to be rejected under clause (d)of rule 5 of Order 33 Civil Procedure Code. ? ( 6 ) ON the first question as to whether the suit could be continued bymoving the present application my attention has been invited tomohammad Fateh Nasil v. Saradindu Mukherjee, AIR 1936 Cal 221 (1 ). In other words, whetherthe plaint is not liable to be rejected under clause (d)of rule 5 of Order 33 Civil Procedure Code. ? ( 6 ) ON the first question as to whether the suit could be continued bymoving the present application my attention has been invited tomohammad Fateh Nasil v. Saradindu Mukherjee, AIR 1936 Cal 221 (1 ). It was held in this case on a review of previous decisions that in such a situation the application should not be rejectedmerely on the ground that the suit has already been registered as anordinary suit. It should be considered on merits. To the same effectis the decision of Madras High Court in Parvathi Ammal v. Meenakshi Ammal, AIR 1951 Mad 841 (2), The Patna High Courtin Makundi Mandal and others v. Haridas and others, AIR 1969patna 267 (3) also held that there is no restriction in the power ofthe court to allow a case not instituted as a pauper suit to be continued as a pauper suit on proper application made by the plaintiffsubsequently in accordance with law. In my view the real positionin law would be that the regular suit would technically come to anend if deficit in court-fees is not made up but that suit can be converted into a suit in forma pauperis if an application to sue as a-pauper moved subsequently is granted. It would be only a futileexercise to first reject the plaint under Order 7 rule 11 Civil Procedure Code andthen consider the pauper application as a fresh institution. Takinga practical view I would not regard the pauper application movedsubsequently to be barred, if it is moved according to law and if thesame is granted to convert the previously filed suit into a suit informa pauperis. ( 7 ) THIS brings me to the consideration of the question as to whetherthe present pauper application has been properly moved and complieswith the provisions of Order 33 rules 1 to 4 of the Code of Civilprocedure. ( 8 ) P. A. 6 of 1972 was filed by the plaintiffs and it was movedbefore the court by one of the plaintiffs and the counsel. This issufficient compliance with rule I of Order 33 Civil Procedure Code On a persualof the application I find that there is full compliance of rule 2. ( 8 ) P. A. 6 of 1972 was filed by the plaintiffs and it was movedbefore the court by one of the plaintiffs and the counsel. This issufficient compliance with rule I of Order 33 Civil Procedure Code On a persualof the application I find that there is full compliance of rule 2. As far as compliance with rule 3 is concerned, I find that only oneof the applicants was present at the hearing on 25/05/1972 butinasmuch as both of them have signed the application and there isnothing shown to me to the contrary it has to be assumed that itwas presented by the applicants in compliance with rule 3. Obviously, the court did not consider examination of the applicantsnecessary for it ordered notice to the respondents on 25/05/1972. Therefore, the application is properly filed and it only remains tobe seen whether the applicants are paupers and other conditions ofrule 5 are fulfiled before granting it. As already noticed the onlycontest is with regard to the petition of plaint not disclosing anysubsisting cause of action. ( 9 ) MR. Sabir Hussain, learned counsel for the applicants, hasinvited my attention to paragraphs 17 and 18 of the petition ofplaint which forms part of the pauper application to show that thereis a subsisting cause of action. According to the applicants defendantno. 1 had filed his eviction petition on 28/10/1959 treatingqutub Uddin as a major and had asserted that the premises had beenlet out to Qutub Uddin who sub-let or assigned or parted with possession of the whole or part of the said premises to Siraj Uddin andabdul Salim, the present plaintiffs/applicants. In the same petitiondefendant No. 1 further stated that sub-tenants were in possessionsince about nine months. As the eviction petition was held on 28/10/1959, therefore, the possession of the plaintiffs/applicantsstarted sometime in January, 1-959 and it could safely be assuer thatqutub Uddin would have entered into a contract of sub-tenancy withthe plaintiffs prior to giving possession to them. Qutub Uddin, itis alleged, was a minor on 10/12/1959 according to anaffidavit of defendant No. 1 and the contract of tenancy or subtenancy was a nullity. Qutub Uddin, itis alleged, was a minor on 10/12/1959 according to anaffidavit of defendant No. 1 and the contract of tenancy or subtenancy was a nullity. Therefore, the Rent Controller could not pass anyorders on the basis of those contracts as no relationship of landlordand tenant in the eye of law could subsist between defendant No. 1and Qutub Uddin nor could any sub-tenancy be lawfully created byqutub Uddin as he was a minor. ( 10 ) BAKSHI Gurcharan Singh appearing for the defendant-respondentsreferred TO paragraph 7 of the plaint in which it is stated that defendent No. 1 filed eviction petition on 28/10/1959 in thecourt of the Rent Controller, Delhi. It was alleged in the evictionpetition that Shop No. 648 was in the tenancy of one Mohd. Shafiwho had sub-let the same to the plaintiffs. It is also said in paragraph 7 that defendant No. 1 did not make the other heirs ofmohd. Shafi a party to the eviction proceedings and concealed thefact from the Tribunal that plaintiff No. 1 was Qutub Uddin s realbrother-in-law and plaintiff No. 2 is real maternal uncle. It ispointed out that adverse possession pleaded by the plaintiffs was notpermissible in law and the plaintiffs have no locus standi to questionthe contract between defendant No. 1 and Qutub Uddin, i. e. theowner and the tenant. ( 11 ) A perusal of the pleadings would show that defendant No. 1 hadfiled an eviction petition on 28/10/1959 against Qutub Uddinand the plaintiffs. Qutub Uddin being a minor, a guardian ad litemwas appointed for him. The original tenant was one Mohd. Shafiand Qutub Uddin was one of the heirs of Mohd. Shafi. This litigafionwas duly contested by the present plaintiffs. An order of evictionwas passed on 31/08/1960. Admittedly, the present plaintiffswere relatives of Qutub Uddin. An appeal against the order ofeviction was also dismissed. In those matters the plaintiffs weredescribed as unlawful sub-tenants. It seems that after the evictionorders were passed the mother of Qutub Uddin and some other triedto challenge the eviction proceedings without any success. This hasled the present plaintiffs to file the suit in forma pauperis, challengingthe eviction orders passed against Qutub Uddin and themselves asbeing without jurisdiction and a nullity. ( 12 ) THE first point that arises for consideration is as to what is theright that the plaintiffs claim in this property. This hasled the present plaintiffs to file the suit in forma pauperis, challengingthe eviction orders passed against Qutub Uddin and themselves asbeing without jurisdiction and a nullity. ( 12 ) THE first point that arises for consideration is as to what is theright that the plaintiffs claim in this property. I have not been ableto find any such averment in the plaint nor has any such avermentbeen brought to my notice. At best by implication the plaintiffscan be regarded as deriving a title from Qutub Uddin. The plaintiffs case is that there was no valid contract of tenancy betweendefendant No. 1 and Qutub Uddin as the later was a minor and therecould not be any valid contract of sub-tenancy between Qutub Uddinand the plaintiffs as contended by defendant No. 1 in his applicationfor eviction. It is a strange way of asserting their title to the property. The plaintiffs do not say whether they are sub-tenants or tenants orin adverse possession of the shop in suit. The plaintiffs cannot bepermitted to deny the title of defendant No. 1 in view of the provisionsof Section 116 of the Evidence Act if they claim a title through Qutubuddin. As was observed by the Privy Council in Currimbhoy and Co. Ltd. V. L. A. Greet and others, AIR 1933 PC 29 (4)where the possession of a disputed property of both the defendantsmust be attributed to the possession given to one of the defendantsby the plaintiff, both the defendants are barred by section 116 fromquestioning the plaintiff s title until they have surrendered possessionagainst to him. The plaintiffs are in possession in their own rightor through Qutub Uddin. There is no assertion that they are inpossesion in their own right. The title of defendant No. 1 vis-a-visqutub Uddin cannot, therefore, be questioned by them. Apart fromthe above fact the plaintiffs were party to the previous litigation andthere is no averment or indication that they ever questioned the titleof defendant No. 1 in the proceedings before the Rent Controller. They did not also contest the contract of tenancy pleaded by defendantno. 1 between him and Qutub Uddin. Any eviction order againstqutub Uddin would be binding on all occupants including the plaintiffs, as was observed by the Supreme Court in Messrs. Importers andmanufacturers Ltd. V. Pheroze Framroze Taraporewala and othersa. They did not also contest the contract of tenancy pleaded by defendantno. 1 between him and Qutub Uddin. Any eviction order againstqutub Uddin would be binding on all occupants including the plaintiffs, as was observed by the Supreme Court in Messrs. Importers andmanufacturers Ltd. V. Pheroze Framroze Taraporewala and othersa. I. R. 1953 S. C. 73 (5) and in Shri Jagadguru Gurushiddaswamiguru Gangadharswami Murusavirmath V. TheDekeshina Maha-rashtra Digamber Jain Sabha, AIR 1953 S. C. 514, (6 ). ( 13 ) IT is admitted by the plaintiffs in paragraph II of the plaint thatthe appeal against the eviction order was ultimately compromised byvirtue of which 2i years were given to the occupants to vacatethe shop. The plaintiffs were, admittedly, parties to these proceedings and took advantage of this compromise entered on 12/05/1961. They cannot now in equity be allowed to resile from thatcompromise and start proceedings to prevent eviction. In Sunderbhaiand another V. Devaji Shankar Despande, AIR 1954 S. C. 82, (7)the rule of estoppel and res-judicata was applied in such circumstances. Similarly, in Sailendra Narayan Bhanja Deo V. The State oforissa, AIR 1956 S. C. 346, (8) it was held that a judgment byconsent or default is as effective an estoppel between the partiesas a judgment whereby the court exercises its mind on a contestedcase. To my mind the rule is fully attracted in the facts of the present case. ( 14 ) MR. Sabir Hussain the learned counsel for the plaintiffs/applicantscontends that the plaintiffs claim adverse posession from 1958inasmuch as there was no valid contract of tenancy between defendantno. 1 and Qutub Uddin and, admittedly, the plaintiffs were in possession. The argument has merely to be stated to be rejected. Thereis no averment in the plaint nor has my attention been invited to anyact of the plaintiffs claiming independent title by way of adversepossession. No particulars were given as to when title adverse todefendant No. 1 was asserted and how it was asserted. In thisview of the matter I hold. that the petition of plaint does not disclose any subsisting cause of action. ( 15 ) I, therefore, dismiss the pauper application under clause (d) ofrule 5 of Order 33 Civil Procedure Code. ( 16 ) WITH regard to the petition of plaint I extend the time for makinggood the deficit in court-fees by two weeks. that the petition of plaint does not disclose any subsisting cause of action. ( 15 ) I, therefore, dismiss the pauper application under clause (d) ofrule 5 of Order 33 Civil Procedure Code. ( 16 ) WITH regard to the petition of plaint I extend the time for makinggood the deficit in court-fees by two weeks. If the deficit in court-fees is not made up, the plaint of Suit No. 302 of 1971 shall standrejected under Order 7 rule II Civil Procedure Code. ( 17 ) IN the circumstances of the case and as, admittedly, the plaintiffsare paupers, I make no order as to costs.