John Beaumont, C.J.
1. In this appeal from a decision of the First Class Subordinate Judge of Ahmednagar a preliminary point is taken by Mr. Shah for the appellants that, having regard to the terms of Order XXXIII, Rule 15, the suit does not lie.
2. Rule 15 deals with the position arising when an application to sue as a pauper has been refused and subsequently a suit is filed on payment of court-fees. The rule is in these terms:-
An order refusing to allow the applicant 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 Government and by the opposite party in opposing his application for leave to sue as a pauper.
3. The material dates are that the pauper application was dismissed on August 7, 1937, and an order was made for payment of the costs of the opponent and the Government Pleader, which were duly taxed; on August 14, 1937, this suit was filed on payment of court-fees, but the costs directed to be paid by the order of August 7 had not been paid; on February 5, 1938, written statement was filed and no objection was raised that the suit did not lie because these costs had not been paid; issues were framed on October 13, 1938, and evidence was recorded in June and July, 1939; and on August 8, 1939, an objection being taken that the costs ordered to be paid on the pauper application had not been paid, they were paid, that is to say, they were paid after all the evidence had been recorded. I feel no doubt whatever that if it was competent for the defendant to waive payment of these costs as a condition of suing, such payment was waived. But the argument is that the payment of costs of the pauper application is made a condition precedent to the institution of an ordinary suit, and, being a condition precedent which goes to jurisdiction, it is incapable of waiver.
4. The general principle applicable was stated by me, accurately I hope, in Devidatt v. Shriram (1931) 34 Bom. L.R. 236 when I was considering whether the provisions of Clause 12 of the Letters Patent, which require leave to be obtained for filing a suit in which the cause of action in part arises outside the Original Side jurisdiction, constitute a condition precedent. I stated the principle in these terms (p. 238):
In cases in which some condition has to be performed before the Court can entertain a suit, the question always arises whether the condition is matter of procedure only, so that failure to perform it may be regarded as an irregularity which may be excused or waived; or whether the condition is one going to the root of the Court's jurisdiction in which case the performance of the condition cannot be waived since it is not competent to parties by conduct or contract to enlarge the jurisdiction of the Court.
It is to be noticed that Rule 15 is curiously expressed. It starts by providing that refusal to allow a pauper application is a bar to any subsequent similar application, That is a specific provision. If the rule had stopped there, there was nothing to prevent the plaintiff suing in the ordinary manner on payment of court-fees, and no permission to institute such a suit would seem to be necessary. But the rule then goes on to give such permission. It says:
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 Government and of the opposite party.
5. The suggestion is that we must construe that provision as imposing an implied prohibition against instituting a suit unless, the costs incurred by the Government and by the opposite party are paid before the institution of the suit, and that the payment of the costs is a condition precedent to the institution of the suit.
6. The rule has been discussed in many cases, and it was discussed very recently by a full bench of the Allahabad High Court in Shiam Sundar Lal v. Savitri Kunwar I.L.R. (1935) All. 191 where a pauper application had been dismissed, but no order had been made for payment of the costs of the opponent or of Government. The Court held that the expression 'costs incurred' in Rule 15 did not mean what it said, but meant 'costs allowed by the Court,' which obviously may be something very different from the costs incurred, and the Court held, therefore, that unless costs have been allowed by the Court, the prohibition under Rule 15 has no application. The Court then expressed the opinion (obiter) that if costs were ordered to be paid by the Court, then they must be paid as a condition precedent to the institution of the suit. The judgment says that any other construction involved the omitting of the word 'first,' and that it is trite law that every word of a statutory enactment must be given its full meaning and effect. With all respect to the Court, having applied that principle to the construction of the words 'first pays,' they ignore it in construing the words 'costs incurred.' I do not say that the interpretation put by the Allahabad High Court on those words is wrong, indeed I think it right, but it certainly does not give the full and natural meaning to the words 'costs incurred.' In a later Allahabad case, Bir Ram v. Lachhmi Rai  All. 11, a single Judge of the Allahabad High Court, who had been a party to the previous decision, held that 'costs incurred' meant 'costs actually taxed and allowed by the Court,' and that the mere dismissal of the pauper application with costs did not bring the prohibition of Rule 15 into operation.
7. The matter has twice come before this Court. In Ramabai v. Shripad : AIR1935Bom421 Mr. Justice Divatia in a second appeal took the view that Order XXXIII, Rule 15, imposes a condition precedent to the institution of the suit, and that as the costs had not been paid before the institution of the suit, the trial Judge had no option, but to dismiss the suit. In a later case a Bench of this Court in Umabai Shankar v. Shankar Hari held that the direction for payment of costs in Rule 15 can be waived by the defend : AIR1940Bom44 ant. The leading judgment was given by Mr. Justice Broomfield, and I must confess that some of his reasoning does not altogether appeal to me. He distinguishes Ramabai v. Shripad (supra) on the ground that no question of waiver arose in that case; but on Mr. Justice Divatia's view that the payment of the costs was a condition precedent to the Court entertaining the suit, there could be no waiver. Moreover, Mr. Justice Broomfield relied on some case's of doubtful authority. He relied on Ledgard v. Bull I.L.R. (1886) All. 191, in which a suit had to be instituted in the District Court. It was in fact instituted in a Subordinate Court, but had been transferred to the District Court. It was held that that was a mere error of procedure; the suit was heard in the right Court, and the only question was whether it had got there by the right road. That was clearly procedure. Then Mr. Justice Broomfield relied on Chandulal v. Awad bin Umar Sultan I.L.R. (1896) 21 Bom. 351 in which a condition precedent to suing a Ruling Prince was held to have been waived. That case is of very dubious authority in view of the later decision of the Privy Council in Gaekwar Baroda State Ry. v. Hafiz Habib-Ul-Haq (1938) I.L.R. 65 IndAp 182. Then Mr. Justice Broomfield relied strongly on an English case Moore v. Gamgee (1890) 25 Q.B.D. 244 which was a case in which the jurisdiction of an English County Court to entertain a suit in which defendant did not live within the district depended on obtaining the leave of the Court, and a divisional Court held that that was a mere matter of procedure. On that basis the decision is right, but, as pointed out by this Court in Devidatt v. Shriram (supra), that case has been explained in the English Court of Appeal on the ground that what was said to be waived was a mere matter of procedure, but the actual decision of the Court of Appeal proceeded on a view inconsistent with the ground on which Moore v. Gamgee was decided. Mr. Justice Broomfield further relied on the Indian case, King v. Secretary of State for India I.L.R. (1908) Cal. 394 which this Court held in Devidatt v. Shriram (supra) to have been wrongly decided, and a decision of this Court which followed that case was overruled. Unfortunately Devidatt v. Shriram (supra) was not brought to the notice of the Court in Umabai Shankar v. Shankar Hari
8. However, although, I think, ther : AIR1940Bom44 e are those criticisms to be made on Mr. Justice Broomfield's reasoning, I am disposed to agree with the conclusion at which the Court arrived. In my opinion, under Rule 15 payment of the costs of a pauper application directed to be paid is not made a condition precedent to the jurisdiction of the Court to entertain an ordinary suit. I do not deny that at first sight the language suggests that that is the effect of the rule; but I rely on three considerations which seem to me to show that that is not its true effect. First, it will be noticed that there is a marked distinction in the language of the first part of the rule, and the later part. Dismissal of a pauper application is to be a bar to a similar applicatior; but it is not provided in terms that non-payment of the pauper costs is to be a bar to an ordinary suit. Secondly, as already noticed, the later part of the rule cannot be construed literally without imposing upon the plaintiff liability to pay costs which he may be under no obligation to pay. Thirdly, whatever meaning be placed on the words 'costs incurred,' they involve action by persons other than the plaintiff. If they are construed literally, the plaintiff cannot pay the costs incurred until he knows what they amount to, and until they are demanded by the opponent and Government. If the words mean 'costs allowed', the opponent and Government must bring in their costs for taxation. In any event something has to be done by somebody other than, the plaintiff; it is not a question merely of the plaintiff taking some step, such as obtaining leave to sue. He has got to wait for third parties to move first, and it is obvious that by delaying action those third parties may cause the plaintiff's suit to be barred by limitation. In my opinion on, these grounds it is legitimate to say that the payment of these costs is not a condition precedent to the institution of the suit. The costs, however, must be paid, and if they are not paid, and the matter is brought to the notice of the Court and the payment is not waived, the Court should reject the plaint on presentation, or subsequently stay the suit pending their payment, but I do not think that it is bound to dismiss the suit.
9. I may notice that the Madras High Court has got out of the difficulty by a somewhat novel method. It was held in Ramakrishna v. Vandaya Thevar : AIR1936Mad24 (which has been followed in a later case) that if the costs are paid after the suit is instituted, the suit can be treated as having been instituted on the date on which the costs are paid, and in that case the Court sent the suit back to the lower Court to decide it on the merits on the basis that it had been instituted on the date on which the costs had been paid. But I can see very serious practical difficulties which may arise in the application of any such doctrine. Supposing, as in this case, the costs are paid after all the evidence has been filed, it may well be that a witness who gave material evidence has died before the costs were paid, and he can hardly be deemed to have given evidence after his death. Or it may be that after the evidence was given, and before the costs were paid, material was discovered which would have enabled very effective cross-examination to be directed against some of the evidence, if given after the costs are paid. I do not see really how you can deal with a suit on the basis that it was instituted after the evidence was closed. I am not, therefore, prepared to accept the view of the Madras High Court, but I think the true view is that the payment of these costs is not a condition precedent, and can be waived, and that in this case the payment before suit was waived.
10. [The judgment then proceeded to deal with the merits of the appeal.]