1. I.A.I. is an application under Section 5 of the Lim. Act for condonation of the delay in presenting an application to be allowed to appeal as a pauper. It has been filed in the following circumstances:--
The Petitioner filed an application in the District Court, Shimoga, for permission to sue as a pauper against the Respondents. That application being rejected be paid Court-fee on the basis of the valuation given in the plaint which was thereupon registered as O. S. 20/50-51. The defendants challenged the value placed by the plaintiff on the suit and the adequacy of court-fee paid. A Commissioner Was appointed to value the items of property which were the subject matter of the suit. He submitted his report.
This appears to have been lost sight of until after both parties adduced evidence in the suit and the case had been posted for final arguments on 20th August 1954. On that day, the Counsel for some of the defendants drew the court's attention to the fact that the plaintiff had not paid the requisite court-fee in conformity with the Commissioner's report.
The Court thereupon posted the case to the next day to enable the plaintiff to file his objection to the Commissioner's report and for arguments on the question of valuation. Arguments were heard on 29-6-1954 and on 30-6-1954 orders were pronounced directing the plaintiff to pay deficient court-fee on a sum of Rs. 55,000/- by. 30-7-1954. Against this order, the Petitioner filed C. R. P. 449/54 on 17-8-1954. On 30th July 1954 the Court extended time for payment of deficient Court-fee till 10-8-1954.
On that day the plaintiff filed an application praying for permission to continue the suit in forma pauperis, i.e., without payment of the deficient court-fee. This application was numbered I.A. XVII and was posted to the next day for the filing of objections and for arguments. Arguments were heard on 11-8-1954 and the case was posted for the pronouncement of orders on I.A. XVII to 12-8-1954. It is found from the order sheet in the suit that on 12-8-1954 not only were orders pronounced rejecting I.A. XVII but the suit itself was dismissed.
2. Against this order dismissing I A. XVII, the plaintiff preferred C. R. P. 541/54 on 13-10-1954. In regard to the dismissal of the suit itself the plaintiff preferred an application in this Court for permission to appeal as a pauper on 3-11-1954. As the period prescribed for preferring such an application is 30 days from the date of the decision and as it was filed 37 days beyond that period, the Petitioner filed I. A. I. i e., the application for the condonation of the delay under Section 5 of the Lim. Act. It is this application that is the subject matter for consideration now.
3. In support of the application, the Petitioner (Plaintiff) has filed an affidavit in which he seeks to explain the delay by stating that as soon as he became aware of the order on I.A. XVII, he applied for a copy of the order to prefer a revision petition to the High Court, that when, after obtaining the copy, he went to Bangalore to arrange for filing the Revision Petition he was told that it was also necessary to file an appeal as the learned District Judge had also dismissed the suit while dismissing I.A. XVII, that he was asked to obtain a copy of the decree along with another copy of the order on I.A. XVII, that he applied for the copies immediately and took steps to file the application for permission to appeal as a pauper as soon as practicable after he obtained the copies.
The respondents have opposed the application for condonation of the delay stating that it is incumbent upon the Petitioner to explain every day's delay after the prescribed period, that the Petitioner must have become aware of the order of dismissal on the date of the order itself, that the first copy of the order obtained was received by the Petitioner on 21-9-1954 and even assuming that the petitioner and his Counsel were not aware that the suit had been dismissed on 12-8-1954 they should have be-come aware of the dismissal of the suit at least on 24-9-1954, that there is nothing to explain the inaction of the Petitioner between that day and 10-10-1954 when the Petitioner is stated to have gone to Bangalore to file a revision petition against the order on I.A. XVII arid that at the best it is a case of gross negligence and that the delay cannot be condoned in these circumstances.
4. A legal point is also raised that Section 5 of the Limitation Act is not applicable to an application under Order 44 of the Code of Civil Procedure. This last point may be disposed of first. It will be seen from the wording of Section 5 of the Act that it covers appeals, applications for a review of judgment and applications for leave to appeal while in regard to other applications the Section has to be made applicable by or under any enactment for the time being in force.
5. It ie contended for the Respondent that an application for permission to appeal as a pauper is not an application for leave to appeal. Reliance is placed upon the decision reported in Ram Pheron v. Sri Ram, ILR 15 Luck 390 (A). It is true that the said decision supports this view, but it has to be noticed that there is no discussion of the point and it appears to he taken for granted that the application is not one for leave to appeal but belongs to the category to which Section 5 of the Lim. Act has to be made applicable by or under an enactment if that section is to be availed of.
On the other hand, there are other decisions, e.g., Ramcharan v. Bansidhar : AIR1928All499 , Ram Dulari v. Allan Bibi AIR 1942 Oudh 240 (C) and Ahmed Arabi v. Osman Isa, AIR 1951 Sau 12 (D) which take the view that Section 5 of the Lim. Act is applicable to an application under Order 44 of the Code of Civil Procedure. I am inclined to accept the latter view. It is true that Order 44 of the Civil Procedure Code does employ the phrase 'Leave to appeal.'
But Article 170 of the Lim. Act which applies to such an application terms it as one 'for leave to appeal as a pauper'. Sections 109 and 110 of the Code of Civil Procedure and Order 45, C. P. C. do not employ the term 'leave to appeal' in the context where prior permission is to be sought It is only in Article 132(2) and Article 136 of the Constitution the term 'special leave' is used with reference to the power exercised by the Supreme Court.
Nevertheless, Article 179 of the Lim. Act refers to an application of any of the categories as an application for leave to appeal. It may also be mentioned that Section 5 of the Lim. Act as it originally stood was not applicable to applications for leave and it was only by the amendment Act 10 of 1922 that such applications were included within the purview of the earlier part of the section.
Under Order 44, Rule 1, Civil P. C., it is provided that a person entitled to prefer an appeal may be allowed to appeal as a pauper subject in all matters to the provisions relating to suits by paupers in so far as those provisions are applicable and subject to an additional condition, i.e., that the decree sought to be appealed against is contrary to law or some usage having the force of law or being otherwise erroneous or unjust.
Order 33, Rule 2 of the Code of Civil Procedure refers to an application for permission to sue as a pauper. There is no difference in meaning between the words 'permission' and 'leave', for, wherever an appeal cannot be preferred as a matter of right, but has to be preceded by a preliminary scrutiny to ascertain if such conditions as are imposed are satisfied, it can quite properly be said that leave has to be obtained, whatever the language employed to describe the process, as, for example, 'permission' in Order 33 of the Code of Civil Procedure, 'certificate' in Sections 100 and 110 and Order 45 of the Code of Civil Procedure or 'leave', 'certifies' and 'certificate' in Articles 152, 133, 134 and 130 of the Constitution.
It is clearly for this reason that Articles 170 and 179 of the Limitation Act employ the phraseology 'for leave to appeal', and it seems to me that the amendment effected to Section 5 of the Limitation Act by the inclusion of the words 'or for leave to appeal' was intended to cover an application like the one in question also. I therefore hold that I.A.I, is maintainable.
6. The next question for consideration is whether the petitioner had sufficient cause for not preferring the application within the prescribed period. Though the affidavit in support of I.A.I, is not quite explicit on the point, the learned Advocate for the Petitioner states that the Petitioner took it for granted that on 12-8-1954 orders had been passed only on I.A.XVII and that he did not become aware that the suit itself had been dismissed as he had no reason to expect that the suit itself would be disposed of on that day.
There is some basis for this contention for, it is seen from, the order sheet of the suit that after arguments on 11-8-1954 the case was posted for orders (on I.A.XVII) to the next day. The entry dated 12-8-1954 reads: 'Order pronounced rejecting I.A.XVII and in consequence dismissing the suit directing the party to bear his own costs.' It is difficult to understand how the suit itself could be disposed of on 12-8-1954 when it had been posted to that day only for pronouncement of orders on I.A.XVII.
Even if a dismissal of the suit followed in the learned Judge's view as a consequence of the rejection of I.A.XVII, this matter should have been put to the parties before the Suit itself was disposed of. This does not appear to have been done. I may add that a situation like this would not arise if the Court takes care to pronounce orders in open Court and parties or their Counsel take care to be present when orders are pronounced.
It is difficult in this case to say what actually happened on that day; but taking into consideration the loose practice that has unfortunately been prevailing, I am inclined to think that the Petitioner's Counsel did not become aware of the order of dismissal of the suit following the order of dismissal of I. A. XVII on 12-8-1954. This is fortified by the fact that on 27-8-1954 an application for a copy of the order on I.A.XVII alone is filed.
It is difficult to believe that a copy of the decree also would not have been applied for on that day it the Petitioner's pleader had become aware of the dismissal of the suit by that time. It is seen however that the copy of the order was received by the Petitioner on 24-9-1954 and in view of this fact it is contended by the Respondent that the Petitioner or his Counsel would not have failed to come to know at least on that day that the suit itself had been dismissed since the order on I.A.XVII itself incorporates the dismissal of the suit also.
Here again, it is urged for the Petitioner, though if is not to be found explicitly stated in the Petitioner's affidavit, that the Petitioner's Counsel had arranged for obtaining a copy of the order and placing it in the hands of the Petitioner to enable him to file a revision petition and that the learned counsel had obviously not looked into the copy of the order as he took it for granted that it pertained only to I.A.XVII and the next step had to be taken at Bangalore.
I am inclined to think that this is what must have happened though it represents some degree of carelessness on the part of the Petitioner's Counsel. There is no reason why if the learned Counsel had looked into the copy of the order and found that the suit itself had been dismissed he would have failed to advice the party to prefer an appeal, nor indeed why the party, if he had become aware of the dismissal of the suit, would have failed to prefer an appeal, There is no doubt some degree of lack of care but it is not, in my view, of such a degree as to deprive the Petitioner of his remedy.
7. It has to be noticed that when the Petitioner came to Bangalore to file a revision petition he was well within time for preferring it, and the revision petition was actually filed on 13-10-1954 when the High Court reopened after the Dasara holidays. The subsequent period taken by the Petitioner in preferring1 the application under Order 44, C. P. C., is satisfactorily explained by the time taken in hi' obtaining another copy of the order on I.A.XVII and a copy of the decree. It is stated in the Petitioner's affidavit that the decree copy was not ready when he filed the second copy application.
Anyway, it is seen from the certified copy which has accompanied the application under Order 44, Rule 1, Civil Procedure Code, that it was applied for 13-10-1954 and received on 30-10-1954. It is to be noted with regret that the decree in the original records docs not indicate the date on which it was signed by the learned Judge, nor does the note in the order sheet to the effect that the decree was signed bear any date.
8. In the light of what is stated above, I allow I.A.I. The Civil Petition is also admitted and will be posted for hearing.
9. Petition allowed.