Skip to content


Mahadev Gopal Savant Vs. Bhikaji Vishram Chavan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 455 of 1941
Judge
Reported inAIR1943Bom292; (1943)45BOMLR544
AppellantMahadev Gopal Savant
RespondentBhikaji Vishram Chavan
Excerpt:
.....to sue in forma pauperis-rejection of application-subsequent payment of requisite court-fees-plaint deemed to be instituted when court-fee is paid.;an application to sue as a pauper, if granted, becomes a plaint under order xxxiii, rule 8, of the civil procedure code, 1908. even before deciding whether to grant the application or not, the court may, at any time during the pendency of the proceedings, treat the application as a plaint and allow the applicant to pay the requisite court-fees and give up his request to be allowed to sue as a pauper. even if the court decides to reject the application under order xxxiii, rule 5, or to refuse to allow the applicant to sue as a pauper under order xxxiii, rule 7, it may treat the application as an unstamped plaint and either before or..........council ruling, edgley j. observed in biswa nath das' case that an unstamped plaint attached to a pauper application must be regarded as an essential part of the application itself. when the application is rejected, there is no document before the court in respect of which the court in its discretion under section 149, civil procedure code, can allow any deficiency of court-fees to be made good. we entirely agree with that view. it follows, therefore, that the order granting time to pay court-fees on the application under order xxxiii, rule 2, must be made before or at the time of the refusal to grant permission to sue as a pauper. that was the view taken in the case of the bank of bihar limited v. sri thakur ramchanderji maharaj i.l.r. (1929) pat. 439 which is the other case cited by.....
Judgment:

Lokur, J.

1. This is a revision application involving an important question of law on which there has been a considerable divergence of opinion. On March 18, 1940, the petitioner made an application to the Small Cause Court, Bombay, for leave to sue as a pauper to recover Rs. 218 due to him on a promissory note dated March 23, 1937. His claim was then in time. The Deputy Registrar of the Small Cause Court issued a notice to the opponent and after holding an inquiry, he passed an order on April 15, 1940, refusing to allow the petitioner to sue as a pauper. On the same day the petitioner made an application to the Small Cause Court requesting permission to file a suit that day on payment of four annas and to pay the balance of the Court-fees in seven days. On that application the Court made the following order : 'Receive rupee one on account of Court-fee to-day and allow suit to be filed. Balance of costs to be paid in seven days.' It appears that the suit was registered on the same day as suit No. 7293 of 1940 and the balance of the court-fee was paid within the time allowed. By that time the claim under the promissory note had become time-barred, but the petitioner wanted the suit to be deemed to have been instituted on the day on which he made the application under Order XXXIII, Rule 2, of the Civil Procedure Code, for permission to sue as a pauper. But the learned Judge held that that could not be done since upon the passing of the order of refusal for leave to sue as a pauper, the proceedings instituted under Rule 2 came to an end, and so he dismissed the suit as time-barred. The petitioner then moved the Full Court of the Small Cause Court, but that Court also took the same view and confirmed the order of the learned trial Judge. These facts are undisputed, and it is obvious that the petitioner's suit would be time-barred if it is held to have been filed on the day on which he paid the Court-fee and not on the day on which he made the application for permission to sue as a pauper. The question, therefore, is what is the effect of the order passed by the learned Judge on April 15, 1940, accepting Re. I as court-fee and granting one week's time to pay the balance of court-fee and allowing the suit to be filed. Prima facie it appears from the wording of the application made by the petitioner that he did not request the Court to accept four annas as court-fee on the original application for permission to sue as a pauper. In the last paragraph of the application he says :-

I must therefore file the suit to-day. As I have no moneys with me to-day I have to pray that Your Honour will be pleased to allow me to file the suit on payment of annas four to-day and permit me to pay the balance of Court-costs in 7 days.

He, therefore, wanted to file a suit on that day with a Court-fee of annas four and requested the Court to grant him time to pay the deficit Court-fee. It cannot, therefore, be said that the Court ordered that Re. 1 should be received as court-fee on the application for leave to sue as a pauper. It is, however, urged on behalf of the petitioner that what he really wanted to request the Court was to accept annas four as Court-fee treating his application for leave to sue as a pauper as a plaint and grant him time to pay the balance of the requisite Court-fee. It may be pointed out that this application itself contained all the information required to be given in the plaint and was verified. The only difference between the application made under Order XXXIII, Rule 2, and this application is that in the former he 'seeks' to recover Rs. 218, while in the latter he says that he 'has to' recover a sum, of Rs. 218. But the Court registered his latter application as a suit and gave a number to it, and did not register the original application. This is sufficient to show that the application made on April 15, 1040, was really the institution of a suit in the ordinary manner as contemplated by Order XXXIII, Rule 15, of the Code of Civil Procedure.

2. If the contention of the petitioner that he really intended to ask the Court to treat his application under Order XXXIII, Rule 2, as a plaint and accept annas four as Court-fee on that, and grant him further time for the payment of the balance of the requisite Court-fee in the exercise of its powers under Section 149 of the Code of Civil Procedure, be accepted, then the question arises whether the Court could do so.

3. If the application to sue as a pauper is granted, then under Order XXXIII, Rule 8, the application itself is deemed to be a plaint in the suit and under the explanation to Section 3 of the Indian Limitation Act, the suit is deemed to have been filed on the day on which the application for leave to sue as a pauper is made. Mr. Pradhan for the applicant argues that the same would be the result even if permission to sue as a pauper is refused, but time is allowed to make good the necessary Court-fee under Section 149 of the Civil Procedure Code. That section, which is newly added in the Code of 1908, runs as follows:-

Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in. its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the ease may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

4. It is obvious that time can be granted to pay the requisite Court-fees only in respect of a document in a pending proceeding. This is clear from the use of the expression 'at any stage' used in that section.

5. In Keshav Ramchandra v. Krishnarao Venkatesh I.L.R. (1895) 20 Bom. 508 this Court held that when the plaintiff's application to sue as a pauper was disposed of under Section 409 of the Code of Civil Procedure, 1882 (corresponding to Order XXXIII, Rule 7, of the present Code) there was no proceeding pending which could be continued and kept alive by the payment of Court-fees. The only course then open to the applicant was that declared in Section 413 (O. XXXIII, Rule 15) of the Code of Civil Procedure, namely, to institute a suit, and the date of the institution of that suit for the purposes of limitation would be the actual date thereof. This case was followed in Keshavlal v. Mayabhai where on p. 207, Chandavarkar J. pointed out that when leave to sue i : (1907)9BOMLR204 n forma pauperis is refused, there is no application alive at the date of the payment of the Court-fees on which such payment could operate so as to give it the retrospective (effect of a plaint. It is urged that these cases were decided under the Code of 1882 which contained no provision corresponding to Section 149 of the present Code of 1908. But even: under the old Code Section 54 (corresponding to Order VII, Rule 11, of the present Code) enabled the Court [to require a party to supply the requisite stamp paper for a plaint within the time fixed and to reject the plaint if the requisite Court-fees be not paid within the time allowed, and if the necessary Court-fees be paid within the time, then as held in Dhondiram v. Taba Savadan I.L.R. (1902) 27 Bom. 330 for the purposes of limitation, the suit is deemed to have been instituted on the day on which the plaint was presented. Hence the enactment of Section 149 in the Code of 1908 does not affect the correctness of the rulings of this Court in Keshav Ramchandra v. Krishnarao and Keshavlal v. Mayabhai and all that they lay down is that once leave to sue as a pauper is refused under Order XXXIII, Rule 7, the proceedings come to an end. Our attention has not been called to any other case of this Court directly in point, but Mr. Pradhan has referred to certain observations made by me in Keshavlal v. Bai Dahi : AIR1939Bom418 I have stated as follows :-

Even in the case of an application for permission to sue as a pauper, if that application is rejected, it is not to be deemed as a rejection of the plaint.... It is open to the Court to grant permission to the applicant under Section 149 of the Civil Procedure Code to pay the deficit Court-fees, and the suit may be ordered to be registered when such Court-fees are paid. In that case the original application itself will be treated as a plaint and the suit as having been instituted on the date on which the application was presented.

6. I must first make it clear that the question now before us did not directly arise in that case, and was not fully argued before me. In-that case a step-mother had obtained a decree against her step-son for arrears of maintenance from the date of the suit. She had been allowed to file a suit in forma pauperis, and the question which arose in execution proceedings was whether the 'date of the suit' was to be taken as the date on which she had filed her application for permission to sue in forma pauperis, or as the date on which that application was granted. I held that the date of the suit was the date of the application, and my reference to Patna and Calcutta cases on which I based my observations was only to emphasise that the same would be the result even if leave to sue as a pauper was refused and time was allowed under Section 149 to pay the necessary Court-fees. But there was then no occasion to consider, nor was it considered by me, whether such time could be granted after the order refusing leave was passed under Order XXXIII, Rule 7, Civil Procedure Code, though that was the view expressed by the Calcutta High Court in the case cited by me [Jagadeeshwaree Debee v. Tinkarhi Bibi]. I.L.R. (1935) Cal. 711 In that case the learned Judges, after relying upon the ruling of the Privy Council in Skinner v. Orde observed as follows (p. 713) :-

In our judgment,... the document mentioned as an application for permission to sue as a pauper Order XXX, Rule 2, of the Code of Civil Procedure which contains all the particulars that the law requires to be given in a plaint and in addition a prayer that the plaintiff might be allowed to sue as a pauper, is a plaint required to be filed in a suit, and the refusal by the Court to grant the prayer of the plaintiff to sue as a pauper, and termination of the proceedings in the matter of granting or refusing leave to sue as a pauper, does not amount to rejection of plaint, so far as the plaintiff was concerned.

The same view was taken by the Calcutta High Court in Kali Dasi Dasi v. Santosh Kumar Pal. But in Biswa Nath Das v. Khejer Ali Molla ` Edgley J. (sitting alone) dissented from it on the ground that another division bench of that High Court had taken a different view in Abhoya Churn Dey Roy v. Bissesswari. The facts of the Privy Council case in Skinner v. Orde were somewhat unusual. There the application for leave to sue as, a pauper had not been refused, but while the question of pauperism was under inquiry, the plaintiff offered to pay Court-fees and gave up his request to be allowed to sue as a pauper. The learned trial Judge accepted the Court-fees, allowed the application to be converted into a regular plaint, and held that for the purposes of limitation the suit must be deemed to have been filed on the date of such conversion. The High Court upheld that view. But the Privy Council held that the suit must be deemed to have been filed on the day on which the application for leave to sue as a pauper was made. Their Lordships observed (p. 134) :-

The Act provides what shall happen if the prayer of the petition be granted, by sect. 308 (now Order XXI, Rule 8). It also provides by sect. 310 (now Order XXI, Rule 15) what shall be the effect of a rejection of the petition. But this case is one which the statute has not in terms provided for ... Although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in the Indian Courts, that a wrong stamp is put upon the plaint originally, and the proper stamp is afterwards affixed.... This case, which is not provided for by the Act, approaches more nearly to the state of things contemplated by sect. 308 (now Order XXI, Rule 8) than, that contemplated by sect. 310 (now Order XXI, Rule 15).

7. From these and other observations made by their Lordships, it is evident that as the petition to sue in forma pauperis contained all the requirements of a plaint plus a prayer that the plaintiff should be allowed to sue in forma pauperis, and as Court-fees were offered when the proceeding was still pending, the suit was deemed to have been instituted on the day on which the application was filed. The same principle would apply in the exercise of the discretion given to Courts by Section 149 of the present Code of Civil Procedure. Referring to the Privy Council ruling, Edgley J. observed in Biswa Nath Das' case that an unstamped plaint attached to a pauper application must be regarded as an essential part of the application itself. When the application is rejected, there is no document before the Court in respect of which the Court in its discretion under Section 149, Civil Procedure Code, can allow any deficiency of Court-fees to be made good. We entirely agree with that view. It follows, therefore, that the order granting time to pay Court-fees on the application under Order XXXIII, Rule 2, must be made before or at the time of the refusal to grant permission to sue as a pauper. That was the view taken in the case of the Bank of Bihar Limited v. Sri Thakur Ramchanderji Maharaj I.L.R. (1929) Pat. 439 which is the other case cited by me in support of my observations in Keshavlal v. Bai Dahi. In the Patna case the plaintiff made an application for permission to sue in forma pauperis on January 21, 1926, and on June 26, 1926, leave to sue as a pauper was refused, but the Court by the same order allowed the applicant to proceed with the suit on payment of necessary Court-fees by July 10. After referring to the Privy Council case of Skinner v. Orde, Jwala Prasad, J., observed as follows (p. 445) :-

An application to sue as a pauper contains an unstamped plaint and the Court can under the power vested in it by Section 149, of the Civil Procedure Code permit the requisite stamp to be paid thereon within a time fixed by it and, after it has been done, the unstamped plaint will be considered to have been validly presented on proper stamped duty on the date when it was originally filed.

The learned Judges of the Full Court of the Small Cause Court, Bombay, seem to think that this case was dissented from in the more recent ruling of the same Court in Laba Mistry v. Ganesh Mistry. I.L.R. (1937) Pat. 281 But that is not so. On the other hand in that case the ruling in Bank of Bihar Limited v. Sri Thakur was cited with approval, and the view I have already expressed above was stated with an emphasis. Similarly the case of the Rangoon High Court cited by the Full Court [Ma Saw Yin v. S.P.K.A.A.M. Firm,] A.I.R. [1937] Ran. 185 does not conflict with this view. In that case the application to pay Court-fees was made after leave to sue as a pauper was refused and the learned Judges observed as follows (p. 189) :-

A petitioner in an application for leave to sue in forma pauperis desiring to take advantage of the provisions of Section 149 must in my opinion make his application for permission to pay the court-fees on the proposed plaint or for a grant of time for such payment before his application for leave to sue in forma pouperis is finally rejected.

The majority of the Judges of the full bench of the Allahabad High Court in Chunna Mal v. Bhagwant Kishore [1937] All. 22 have drawn a distinction between the rejection of a plaint to sue as a pauper under Order XXXIII, Rule 5, and the refusal to allow the applicant to sue as a pauper under Order XXXIII, Rule 7, and held that in the former case the Court when rejecting the application can, under Section 149 of the Code of Civil Procedure, allow the applicant to pay the requisite Court-fees and treat the application as a plaint, but it cannot do so in the latter case when refusing permission to sue as a pauper under Order XXXIII, Rule 7. In making this distinction the learned Judges were weighed by the requirements of the provisions of O, XXXIII, Rule 15, that when leave to sue as a pauper is refused under Order XXXIII, Rule 7, the applicant must, before instituting a suit, first pay costs incurred by the Provincial Government and by the opposite party in opposing his application for leave to sue as a pauper. The learned Judges say (p. 29) :-

If the Court were to allow the applicant, after refusing to allow him to sue as a pauper, to pay the necessary court fee and proceed with the suit, then the provisions of Rule 15 would be directly evaded and the plaintiff would be entitled to prosecute his claim without having had to pay in the first instance the costs incurred in the proceedings relating to the inquiry into his pauperism.

8. But obviously Rule 15 would apply only if after the refusal of leave to sue as a pauper, the plaintiff institutes the suit in the ordinary manner, but it will have no application when time to pay the requisite court-fees is granted before the order under Order XXXIII, Rule 7, is passed and the original application itself is treated as a plaint. At the end of the judgment the learned Judges have suggested that Order XXXIII, Rule 7, should be amended so as to empower the Court, while refusing to allow the applicant to sue as a pauper, to grant him time to convert the application into a plaint and pay the necessary Court-fee. But even then the objection regarding the payment of costs under Rule 15 will remain. If it is thought necessary to avoid this difficulty, then it is open to the Court when granting time under Section 149 to order the applicant to pay the said costs at the time or before paying the court-fees. Another difficulty which the learned Judges pointed out was that the application was not from the very start a sort of a double document-both a plaint and an application-but it can become a plaint only by virtue of the provisions of Order XXXIII, Rule 8. But this difficulty would arise even in allowing time under Section 149 in the case of the rejection of the application under Order XXXIII, Rule 5. The ruling of the Privy Council in Skinner v. Orde already referred to shows that the Court has power to treat the application as a stamped plaint and allow court-fees to be paid. In Alopi Parshad v. Mst. Gappi I.L.R. (1936) Lah. 831 Abdul Rashid J. has appropriately described an application to sue in forma pauperis as a 'potential plaint,' which when it lasts, may at any time be converted into a plaint by payment of necessary Court-fees. In the Allahabad full bench case, Allsop J., in his differing judgment, expressed his view that there was no difference between the case under Order XXXIII, Rule 5, and Order XXXIII, Rule 7, so far as this point was concerned, and he went on to say that in either case power; to permit the application to be converted into a plaint by payment of court-fees, which the Court undoubtedly had during the pendency of the application, as held by the Judicial Committee, could be exercised at the time of rejecting the application, i.e. if in one single order the Court declined leave to sue as a pauper and also gave time for the payment of court-fees, that would be within the discretion allowed by Section 149 of the Code. But he agreed with the other Judges that once the order finally disposing of the application for leave to sue as a pauper was passed, it was no longer open to the Court to give any, further time to pay court-fees and revive the application already disposed of completely. We entirely agree with that view, and we may add that the Lahore High Court has taken the same view in Ram Het Gir v. Banwari Lal. A.I.R. [1938] Lah. 41

9. The result of all this discussion may be briefly stated : An application under Order XXXIII, Rule 2, of the Code of Civil Procedure for permission to sue as a pauper is required to contain particulars required in regard to plaints in suits. It is to be signed and verified in the manner prescribed for the signing and verification of pleadings by the Code, and is capable of being itself treated as a plaint. If the application is granted and the applicant is allowed) to sue as a pauper, then the application becomes a plaint in virtue of the provisions of Order XXXIII, Rule 8, and would be numbered and registered. Even before deciding whether to grant the application or not, the Court may, at any time during the pendency of the proceedings, treat the application as a plaint and allow the applicant to pay the requisite Court-fees and give up his request to be allowed to sue as a pauper, as in the Privy Council case of Skinner v. Orde. Even if the Court decides to reject the application under 0. XXXIII, Rule 5, or to refuse to allow the applicant to sue as a pauper under Order XXXIII, Rule 7, it may treat the application as an unstamped plaint and either before or at the time of passing the order under Rule 5 or 7, it may in its discretion under Section 149 allow the applicant time to pay the requisite Court-fees, and upon such payment within the time allowed, number and register the plaint. But in doing so, the Court should have regard to the provisions of Order XXXIII, Rule 15, and make the payment of the costs mentioned therein a condition precedent. In all these cases, for the purposes of limitation, the suit will be deemed to have been instituted on the day on which the application for leave to sue as a pauper is made. But if once the Court passes an order rejecting the application under Rule 5 or refusing to allow the applicant to sue as a pauper under Rule 7, without keeping the application alive as an unstamped plaint and granting the applicant time to pay the requisite Court-fees, the proceedings come to an end, and it has no power to do so by a separate and subsequent order. In that case the only remedy for the applicant is to file a regular suit under Order XXXIII, Rule 15. In that case for the purposes of limitation, the suit must be taken as instituted on the day it is actually filed, and he cannot avail himself of the time spent in the pauper proceedings to save the bar of limitation.

10. In the case before us, the time to pay the deficit Court-fees was granted by the Small Cause Court Judge after the termination of the pauper proceedings before the Deputy Registrar. He could not thereby revive the application which had already been disposed of. The Deputy Registrar might have, had he thought it proper to do so, granted time to the petitioner under Section 149 of the Civil Procedure Code, before or at the time of passing his order under Order XXXIII, Rule 7. But he did not do so, and his order is not before us for revision. It appears that no such request was made to him, and from the fact that no time for payment of court-fees was granted before leave to sue as a pauper was refused, it cannot be said that he exercised his discretion wrongly. Hence the suit must be deemed to have been instituted on April 15, 1940, when it was obviously time-barred. The Small Cause Court Judge was, therefore, right in dismissing it.

11. It is argued for the first time in this Court that the petitioner should be given the benefit of the period spent by him bona fide in the pauper proceedings under Section 14 of the Indian Limitation Act. No such request was made to the Courts below, and we 'are not prepared to consider it here for the first time in this revision proceeding. We may only point out that in Keshavlal v. Mayabhai, Chandavarkar J. thought that Section 14 of the Indian Limitation Act would not apply to a case like this.

12. We, therefore, refuse this application and discharge the rule with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //