Shankar Narayan Goverdhan v. Bharat Pulverising Mills Pvt. Ltd. & another
1987-08-04
G.H.GUTTAL, P.B.SAWANT
body1987
DigiLaw.ai
JUDGMENT - P.B. SAWANT, J.:---The plaintiff instituted the present suit on July 27, 1977 as an indigent person under Order XXXIII, Rule 1 of the Code of Civil Procedure for damages against the defendant. The inquiry into his indigent circumstances resulted in a finding against him and, therefore, while refusing permission to sue as an indigent person, the Court by its order dated September 30, 1980 give him time to pay the Court fees by October 30, 1980. The plaintiff failed to pay the Court-fees before that date, and on December 29, 1980 made an application to pay the same. On that day the Court passed an order giving him time to pay the Court fees upto December 30, 1980. The plaintiff accordingly paid the Court-fees on that day. When the suit came up for hearing, the defendants contended that the suit was barred by time on two grounds. The first was that the Court had not jurisdiction to extend the time for payment of the Court-fees, once the plaintiff had failed to pay the same before October 30, 1980. The second was that the application to sue as forma pauperis was not verified as required by Rule 2 of Order XXXIII and, therefore, the suit cannot be deemed to have been filed on the date the application was filed. 2. The learned trial Judge accepted the first contention of the defendant and rejected the second holding that the defendant had not raised it before the application was rejected and had raised it only after the application was converted into a suit. Having accepted the first contention, the trial Judge dismissed the suit. In support of the said contention, the learned trial Judge has relied on two decisions of the Allahabad High Court viz. (Chunna Mal v. Bhagwant Kishore)1, A.I.R. 1936 All. 584 and (Devendra Kumar v. Mahant Raghuraj)2, A.I.R. 1955 All. 154. 3. It is unnecessary to go into the case law on the subject which is prior to the insertion of Rule 15-A in Order XXXIII, which Rule came into force with effect from February 1, 1977, by virtue of the Amendment Act 104 of 1976.
584 and (Devendra Kumar v. Mahant Raghuraj)2, A.I.R. 1955 All. 154. 3. It is unnecessary to go into the case law on the subject which is prior to the insertion of Rule 15-A in Order XXXIII, which Rule came into force with effect from February 1, 1977, by virtue of the Amendment Act 104 of 1976. The added Rule 15-A states as follows : "Grant of time for payment of Court-fees.---15-A. Nothing contained in Rule 7 or Rule 15 shall prevent a Court, while rejecting an application under Rule 5 or refusing an application under Rule 7, from granting time to the applicant to pay the requisite Court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred to in sub-rule (2) of Rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented." It is obvious that this rule was inserted in the Order to set at rest the controversy arising out of the conflicting judgments of the different High Courts on the subject. Prior to it, some High Courts had taken the view that when a person seeks to sue as forma pauperis the document which he files is a composite one consisting of plaint and the application to sue as forma pauperis. Hence, according to them, though the application was rejected, the plaint continued to remain on record till it was rejected for want of Court-fees. In the circumstances, the Court had power to grant time and also the extensions in time to pay the Court-fees. On the other hand, the other High Courts had taken the view that the application to sue as forma pauperis was independent of the plaint and unless the application was granted, the plaint did not come on record. According to this view, therefore, the moment the application was rejected, the Court ceased to be in seisin of proceedings. Hence the Court had no power to grant time to pay the Court-Fees. The only exception to this rule was when the Court while rejecting the application, granted time to pay the Court-fees. The two decisions of the Allahabad High Court relied on by the trial Court had taken the latter view.
Hence the Court had no power to grant time to pay the Court-Fees. The only exception to this rule was when the Court while rejecting the application, granted time to pay the Court-fees. The two decisions of the Allahabad High Court relied on by the trial Court had taken the latter view. It may, however, be stated that a later decision of the same Court, though rendered by a Single Judge, reported is (Smt. Gomti Devi v. Hari Shankar)3, A.I.R. 1978 All. 402 has specifically adverted to the new Rule 15-A and has, with respect, rightly distinguished the earlier decisions on that count. In view, therefore, of Rule 15-A the language of which is explicit, the finding given by the trial Court on the point has to be negatived. 4. Coming to the other contention, viz. that the application to sue as an indigent person was not verified as required by Rule 2 of Order XXXIII, Rule 2 reads as follows : "Contents of application.---2. Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits ; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings." Read together Rule 5(a), it may appear at first blush that the application which is not verified in the manner required by Rule 2 has to be rejected by the Court. However, it is now well established that the non-verification of any pleadings in the manner required by the Rules is not fatal, and that pleadings can be verified at a later stage, even after the expiry of the period of limitation. Omission to verify pleading is a mere irregularity within the meaning of section 99 of the Code as has been held by the Supreme Court in (Bhikaji Keshao Joshi another v. Brijlal Nandlal Biyani others)4, (1955)2 S.C.R. 428 . Where the verification of a plaint or petition is defective, it should not normally be rejected. An order should be made for its amendment. 5. It is true that in the present case the application to sue as an indigent person is not verified in the manner required by Rule 2.
Where the verification of a plaint or petition is defective, it should not normally be rejected. An order should be made for its amendment. 5. It is true that in the present case the application to sue as an indigent person is not verified in the manner required by Rule 2. However, since we are remanding the matter for trial on merits, we direct that the trial Court will give sufficient opportunity to the plaintiff to remedy the defect and verify the plaint as required by the said Rule. 6. In the result, we allow the appeal, set aside the impugned decree passed by the trial Court and direct the trial Court to give sufficient time to the plaintiff to verify the application and the plaint. 7. The appeal is allowed with costs. Appeal allowed. -----