Skip to content


Beerav Alli Desireddi Vs. Yeluri Rama Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1502 of 1970
Judge
Reported inAIR1972AP55
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 149, 151 and 153 - Order 33, Rules 5, 11 and 15
AppellantBeerav Alli Desireddi
RespondentYeluri Rama Rao
Appellant AdvocateP.L. Narasimha Sarma, Adv.
Respondent AdvocateB.V. Subbaiah, Adv. for ;S. Venkata Reddi, Adv.
Excerpt:
.....in forma pauperis merges in the decree and the correctness of that order could be canvassed in the appeal filed against the final order passed rejecting the plaint. therefor the leonard district judge failed to exercise the jurisdiction vested in him in coming to the concussion that the application is not maintainable for the purpose for which it was filed. subbaiah, the leaned counsel who argued for the respondent has strenuously contended that once an application to sue in forma pauperis is filed along with a plaint it amounts to filing of a suit in forma pauperis and when the plaint was rejected ultimately in the proceedings on the failure of the applicant to pay court-fee as directed by the court thin the time granted, it amounts to dismissal of the suit for default and the term..........: air1952mad86 , about which mention had been made above, it was held that in a regularly filed suit when an order directing payment of additional court-fee is not complied with, the order passed was one rejecting the plaint and the full bench held that it is an order which is attracted by the definition of 'decree' in section 2(92), civil p. c. and is appealable as such. therefore, even in pending suits regularly filed on even in pending suits regularly filed on the failure to comply with any direction for payment of additional court-fee, the proper order to be passed is to reject the plaint and not to dismiss the suit for default in payment of additional court-fee. therefore even if filling of an application to sue as a pauper along with the plaint amounts to filing of a suit.....
Judgment:
ORDER

1. This Civil Revision petition is directed against an order dismissing an application filed under Ss. `151 to 153 of the Code of Civil Procedure to amend the judgment and decree in A. s. No. 176 of 1969 on the file on the District Judge, Guntur, to grant time for payment of court-fee. The petitioner filed O. P. No. 67 of 1967 in the District Munsiff Court, Guntur along with a plaint to permit him to sue in forma pauperis. The learned District Munsiff dismissed the application refusing to grant permission to the petitioner to sue in forma pauperis holding that he has means to pay the court-fee payable on the plaint and gave time to him to pay the court-fee till 10-5-1969. Against this order of the District Munsiff refusing to permit him to sue in forma pauperis. the petitioner did not file any revision petition which lies against such an order. When the petitioner failed to pay the court-fee as direct by the Munsiff court within the time granted, the District Munsiff passed an order rejecting the plaint. It is against this order rejecting the plaint the petition preferred the appeal A. S. No. 176 of 1969 referred to above to the District Court. Guntur canvassing the correctness of the order passed by the District Munsiff refusing to permit him to sue in forma pauperis. The District Court agreeing with the Munsiff Court pay the court-fee payable on the plaint and dismissed the appeal. But while dismissing the appeal the District Court did not grantee any time for the petitioner to pay the court-fee payable on the plaint. Therefore, the petitioner filed I. A. No. 559 of 1970,. out of which this revision has arisen, to amend the judgment and decree passed in the appeal for granting time for payment of court-fee within two months. The learned District Judge dismissed the application as not maintainable. It is this order passed by the learned District Judge that is assailed in this revision petition.

2. Though there is no specific provision of law for granting time for payment f court-fee on a pleading while rejecting the application to sue in forma pauperis it has been laid down in several decided cases that it is undoubtedly the practice conclusion on a pauper application to give the party some time to pay the court-fee. It is on account of this practice only, the District Munsiff while dismissing the application filed by the petitioner to permit him to sue in forma pauperis granted time till 10-5-1969 to pay court-fee within the time allowed. the petitioner preferred an appeal against the order rejecting the plaint treating it as a decree to canvass the correctness of the order of the District Munsiff Court in coming to the conclusion that he is not a pauper. If the final order passed by the District Munsiff in the proceedings rejecting the plaint when the petitioner failed to pay court-fee within the time granted amounts to a decree, the earlier order passed by the Munsiff Court refusing to allow the petitioner to sue in forma pauperis merges in the decree and the correctness of that order could be canvassed in the appeal filed against the final order passed rejecting the plaint. If that is so, when the appeal was filed by the petitioner questioning the correctness of the order of the District Munsiff with regard to his pauperism the matter was at large and in the appeal that matter would have to be gone into to find out whether the petitioner is a pauper r not. Having gone into that matter the District court came to the conclusion that the petitioner is not a pauper. When the District court came to that conclusion, as per the practice allowed by several courts, the District court ought to have granted some time for payment of court-fee. While dismissing the appeal the learned District Judge did not say anything about it. Therefore, it became necessary for the petitioner to move the District Court by way of an application for the purpose of granting of time to pay the court-fee. It is different matter whether Sections 151 - 153 of the Code of Civil Procedure are the proper provisions or not under which the application has to be made. Therefor the Leonard District Judge failed to exercise the jurisdiction vested in him in coming to the concussion that the application is not maintainable for the purpose for which it was filed.

3. Mr. B. V. Subbaiah, the leaned counsel who argued for the respondent has strenuously contended that once an application to sue in forma pauperis is filed along with a plaint it amounts to filing of a suit in forma pauperis and when the plaint was rejected ultimately in the proceedings on the failure of the applicant to pay court-fee as directed by the court thin the time granted, it amounts to dismissal of the suit for default and the term decree as defined in Section 2(2) of the Code of Civil Procedure excludes any order of dismissal for default and therefore the order passed by the District Munsiff finally in rejecting the application when the petitioner failed to pay the court-fee within the time granted amounts to dismissal of the suit for default in payment of court-fee. Therefore according to the learned counsel no appeal lies against that order and the appeal filed against the order in A. S. No. 176 of 1969 on the file of the District Court did not lie at all. If that is so, according to the learned counsel the question of granting of further time for payment of court-fee by the District Court in the apparel would not arise at all. If that appeal is not maintainable I think that would be the position. Therefore the question is whether the order ultimately passed by the District Munsiff court in the pauper proceedings rejecting the application is an appealable order or not. It is not one of the appealable orders as mentioned in Order 43 of the Code of Civil Procedure. An appeal would lie against that order if that order amounts to a decree as it is defined in Section 2(2) of the Code of Civil Procedure according to which 'Decree' means the normal expression f an adjudication which, so far as regarded the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final and it shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or S. 144, but shall not include (a) any adjudication from which an appeal liars as an appeal from an order or (b) any order of dismissal for default. If the order in question amounts to rejecting of plaint, for whatever reason it might be, certainly it would be a decree as per the above definition. If it is a decree the appeal filed was competent.

4. In many decided cases it was held that an application to sue as pauper is a composite document consisting of an unstopped plaint and an application for permission to sue in forma pauperis and if the application is rejected, the plaint still remains and the court may in its discretion, while rejecting the application, allow the petitioner to pay the requisite court-fee on the plaint. It was so stated in the decision Sulemani Begum v. Ghulam Mohammed, : AIR1960AP381 . In the decision Ansuyamma v. Subbareddi, AIR 1943 Mad 646. it was held that there is n provisions made in the Order 33, Civil P. C., for giving time to a pauper to pay court-fee after his after his application has been dismissed, but a court regards an application to sue in forma pauperis with which a plaint is necessarily as a presentation of the plaint without court-fee; and if the request to be given time to pay court-fee is made at the time when the application is being dismissed, then the plaint is regarded as being still on record and time can be granted under Section 146, Civil P. C. In the decision Venkataramamurthi v. Kameswaramma, : AIR1966AP276 it was held that an application to sue as a pauper is a composite document consisting of an unstopped plaint and an application for permission to sue in forma pauperis. If the application to sue in forma pauperies is rejected the plaint still remains and the court may in its discretion allow the petitioner to pay the court-fee. After rejection of the leave, the court would consider whether the petitioner-plaintiff should be given time for payment of court-fee and pass appropriate order.

5. Therefore it is clear that when the District Munsiff Court passed orders refusing to grant permission to the petitioner to sue in forma pauperies the plaint still remained. Subsequently when the petitioner failed to pay the court-fee within the time allowed by the court, and it passed orders finally disposing of the proceedings, is it not in rejection of the plaint. The actual order passed by the Munsiff Court is not before me. But it appears from the order of the District Court under revision that the learned District Munsiff passed orders dismissing the O. P. On the failure of the petitioner to pay the court-fee within the time granted. The question is whether the order passed by the District Munsiff, in the circumstances, amounts to rejection of the plaint or dismissal of the suit for default. As provided under O. 33, R. 15 an order refusing to allow an applicant to sue as a pauper could be bard only to any subsequent application of the like nature by him in respect of the same right to sue, but the applicant would be at liberty institution a suit in the ordinary manner in respect of such right, provided of course that he first pays the costs, if any, incurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper. Therefore the idea is, that even if the applicant fails ultimately in his application filed to sue as pauper by prevented from instituting a suit in the ordinary manner in respect of the same right. This he cannot if the dismissal of his application to sue as a pauper finally does not amount merely to rejection of the plaint but amounts to only dismissal of the suit for default because there is an essential distinction between rejection of a plaint and dismissal of a suit. The rejection of a plaint takes away the basis of the suit. It amounts to that no suit was filed. But in the case of a dismissal, even for default, the existence of the suit is recognised and its termination is indicated, in which case the applicant is no longer within his right to institute a suit even in the ordinary manner in respect of the same right. Therefore I am of the few that when any pauper application is finally disposed of after refusing leave to the applicant to sue in formal pauperis, it amounts to rejection of the plaint and not dismissal of the suit for default.

6. In this connection, Mr. B. V. Subbaiah has placed reliance particularly on two decision a, namely, In re Venkata Subrahamanyam, : AIR1955AP74 , a Full Bench case of the High Court of Judicature of Andhra at Guntur and Bench decision of the Madras High Court in Govinda Pathiyar v. Anantha Narayana Iyer, (1955) 2 Mad LJ 665 = (AIR 1956 Mad 441). In the Full Bench case a person initially permitted to sue nine forma pauperis was subsequently disappeared on it being discovered that he was possessed of sufficient means. On his failure to pay the court-fee within the time granted for the purpose his suit was dismissed. On the maintainability of the Civil Revision Petition, filed by him in the High Court against the order of dismissal, the Full Bench held that no appeal lies against an order under Order 33. Rule 11 and a revision only is maintainable. There an order against which the revision was filed was made under Order 33, Rule 11 where procedure was laid down for payment of court-fee in a pauper suit. In Order 33, Rule 11 specific provision is made to pay the court-fee within the time prescribed and a default dismiss the suit and make an order for payment of court-fee. Therefore under Order 33, Rule 11, the court is empowered to dismiss the suit. Therefore when the suit is dismissed as provided under Order 33, Rule 11 on account of failure to pay the requisite court-fee within the time granted, the order passed will be an order of dismissal of the suit for default within the meaning of Section 2(2) of the Code of Civil Procedure and therefore it is not a decree. It is under these circumstances it was held by the Full Bench that the order passed is not a decree and therefore a revision lies against it. I do not think anything said in this Full Bench case will lend support to the contention of the learned counsel for the respondent. In the Madras Bench decision referred to above in an application filed to sue in forma pauperis. after inquiry the court found that it has not been shown that the petitioner is not possessed of sufficient means to enable him to pay the court-fee and further that the allegations in the petition do now show a cause of action. On both the grounds the court found that the petition was not maintainable but gave the petitioner a period of two weeks for payment of the requisite court-fee. The petitioner did not company with the order to pay the court-fee and therefore his application was dismissed. Thereafter the applicant filed an appeal under O. 43, R. 1 (nn). an objection was raised as to the maintainability of that appeal contending that inasmuch as the rejection of the petition for leave to sue as a pauper amounts to a rejection of a plaint as contemplated in Section 2(2) of the Code of Civil Procedure from which an appeal lies, and since no proceedings have been taken in that regard, the appeal filed under O. 43, R. 1 (nn) against that portion of the order of the court rejecting the pauper application which found that the allegation in the application does not show a cause of action is not maintainable. The learned Judge held in that case that the order of rejection of the pauper application for non payment of court-fee is not appealable. The learned judge appears to have come to this conclusion mainly on the ground that as provided under Order 33, Rule 15 about which reference had already been made above, there is a remedy to the applicant by way of a suit. I am unable to understand how this remedy of the applicant makes the order of rejection of the pauper application non-appealable. The learned Judges also referred to the Full Bench decision of the Andhra High Court mentioned above and placed reliance on it to come to this conclusion. The learned judges observed as follows:---

'In our view, the reasoning of the learned Judges of the Andhra High Court can be usefully followed for the decision of this point, for, it after the pauper application has been registered as a suit and the plaintiff is dispaupered, the dismissal of a suit for non payment of court-fee is not a decree, all the more is the rejection of an application for leave to sue in forma pauperis for non payment of court-fee is a dismissal for default, against which no appeal lies.'

7. With great respect I am unable to follow this reasoning. As already mentioned above, the learned Judges in the Full Bench decision came to that conclusion because of the wording adopted in Order 33, Rule 11. In specific terms it envisages dismissal of a suit on the plaintiff committing default to pay the requisite court-fee within the time allowed by the court. Because of this specific provision the learned judges held that the order of dismissal would come under Section 2(2)(b) of the Code of Civil Procedure, namely order of dismissal for default, which is excluded from the definition of the terms 'decree'. The judges in the Madras decision put the matter also on the alternative ground by holding that even if the order dismissing the pauper application on the failure of the applicant to pay the court-fee within the time allowed is appealable, still since two remedies flow from in-dependent acts, the exercise of the one such right is no bar to the exercise of another. The aggrieved party is not faced with alternative remedies. He has not lost the right to have an appeal against the order holding that the plaint does not show a cause of action because for non payment of court-fee the application has been rejected.

8. Satyanarayanacharyulu v. Ramalingam, : AIR1952Mad86 is a Full Bench case of the Madras High Court. In that case a suit was filed on a fixed court-fee of Rs. 100/- valuing the suit for the purpose of jurisdiction of Rs. 3600/-. On an objection taken to the correctness of the valuation, the learned Subordinates Judge, after enquiry, found that the suit has been grossly undervalued and the valuation of the property in that suit exceeded Rs. 10,000/- and directed the plaintiff to pay an additional court-fee of Rs. 400/- and ten days time was given for payment. of deficit court-fee. When deficit court-fee had not been paid within the time allowed. the plaint was rejected. A revision petition was filed against that order. The question arose whether an appeal lies against that order or a revision lies. The Full Bench held that where an order directing payment of additional court-fee is not complied with and it is followed by an order rejecting the plaint, a revision petition is not maintainable against the latter. The proper remedy is only by way of an appeal against the order rejecting the plaint which is a decree under Sec. 2(2) and is appealable as such. The Full Bench further held that once an appeal order in the form of an order rejecting the plaint is passed, a revision petition cannot also be filed against the earlier order demanding additional court-fee. Such a petition is against the well established principles of procedural law. In the decision Kamalamma v. Marianna, AIR 1960 Mys 140, it was held by the Mysore High Court that where the plaintiff along with his plaint files an application for permission to sue in forma paupers and the application is rejected and the plaintiff is asked to pay court-fee by a certain date and upon his failure either to get the time extend or to pay the court-fees, the plaint is rejected, the rejection of the plaint being a 'decree' within the meaning of Section 2(2) no revision lies against the order of rejection, but only an appeal. It was further held that when once the order of rejection of plaint is passed, there can be no revision against the first order calling upon the plaintiff to pay the court-fee on the plaint. That order becomes merged in the subsequent order and is of no effect whatsoever and hence there can be no revision against the previous order. I respectfully agree with this view taken by the Mysore High Court. A similar view was taken by Ramaswami, J. of the Madras High Court in re Vidyedavalli Thayar. : AIR1959Mad14 wherein it was held that when an application to file a suit in forma pauperis is rejected and time is given for payment of the court-fee and then the court-fee is not paid within the time prescribed, the remedy of the petitioner is not by way of a revision but by way of appeal against the order rejecting the original petition for non payment of the court-fee. Having regard to all these circumstances I am of opinion that when in an application made of file a suit in forma pauperis leave is refused to allow the suit to be filed in forma pauperis and when subsequently the court-fee is not paid within the me given for payment and the application made to file the suit in forma pauperis is finally rejected or dismissed, the final orders passed would amount to rejection of the plaint and the remedy of the applicant against such an order is not by way of revision but by way of appeal. such an order being a 'decree' within the meaning of Section 2(2) of the Code of Civil Procedure. The earlier order passed refusing permission to sue in forma pauperis merges in such a decree and after passing of the final orders rejecting or dismissing the pauper application the remedy for questioning the correctness of the order of the court refusing permission to file the suit in forma pauperis is only to prefer an appeal against the final order passed rejecting or dismissing the application and not to file a revision against the earlier order passed refusing permission to file the suit in forma pauperis though such a revision lies before the application is finally rejected or dismissed.

9. Therefore it cannot be said, as argued by Mr. B. V. Subbaiah that the appeal A. S. No. 176 of 1969 filed before the District Court, Guntur was not maintainable. Therefore the question is whether while dismissing the appeal on merits regarding pauperism of the petitioner, the District Court should have considered the matter for granting time for payment of the court-fee payable on the plaint. As already mentioned above, there is not specific provision of law for granting time for payment of court-fee on a pleading while rejecting an application to sue in forma pauperis. But it is undoubtedly the practice of courts, on coming to an adverse conclusion on a pauper application, to give the party some time to pay the court-fee. Thought there is no specific provision in that respect there is Section 149 of the Code of Civil Procedure wherein it is provided that

'Where the whole or any part of any fee prescribed for any document by the law relating to court-fee 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 case 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.'

It must have been under this provision, as a practice, the courts are granting time for payment of court-fee on coming to an adverse conclusion on a pauper application. If the court in which the pauper application is filed can grant time for payment of court-fee on refusing to permit the applicant to sue in forma pauperis. I do think that the appellate court also can grant time for payment of the court-fee while dismissing the appeal because the appeal is only a continuation of the original proceeding. In the decision Tej Dat Singh v. Dat Singh,. AIR 1948 Oudh 157 it was held that the provisions of Section 149, Civil P. C. are sufficiently wide and should be applied for gratin g time for filing the requisite court-fee even at the stage of revision against the rejection of the application for leave to sue in forma pauperies. The learned District Judge while dismissing the appeal ought to have considered whether to grant time or not to the petitioner for payment of the court-fee. Without considering the matter the learned District Judge dismissed the appeal. Hence the petitioner had to file the application under revision requesting the District Court to grant him time for payment of the court-fee. This, the learned District Judge dismissed by holding, in effect, that the application is not maintainable on the ground that the question of granting further time by the appellate court does not arise at all. Therefore, the learned District Judge did not consider the matter on merits whether to grant time or not for payment of the court-fee. It is true that while refusing leave to file the suit in forma pauperis the District Munsiff Court did grant time to the petitioner for payment of the court-fee. But the petitioner was questioning the correctness of the verdict given by the District Munsiff Court that he is not a pauper. Therefore without payment the court-fee he took the matter in appeal. It is not as if when the matter was finally decided against the petitioner in the appellate court, he was given once against time for payment of the court-fee and the petitioner has not come forward for grant of time for a second time. While dismissing the appeal, the learned District Judge did not pass any orders giving some time for payment of the court-fee. I see no grounds why the petitioner should not have been granted time for payment of the court-fee by the learned District Judge while dismissing, the appeal. The learned District Judge should have granted some time to the petitioner for payment of the court-fee while dismissing his appeal.

10. It is true that the petitioner filed the application for granting time under Section 151 and 153, Civil P. C. while the application in my opinion should have been filed under Section 149, civil P. C. which is the proper provision for granting time for payment of the court-fee. It does not matter. On the ground that a wrong provision of law has been quoted in the application it cannot be dismissed. The application can still be treated as the one filed under the provision which is the correct provision of law. Therefore the application filed by the petitioner can be treated as the one filed under S. 149, Civil P. C.

11. Before closing the judgment, I must make mention about one aspect of the argument of Mr. B. V. Subbaiah that once an application to sue in forma pauperis along with the plaint is filed, it amounts to filing of a suit. If that is so, as already mentioned above, he argued that when the pauper application was finally rejected for the default of the petitioner in payment of the court-fee, the order passed by the lower court would amount to dismissal of the suit the Code of Civil Procedure will be attracted and as the order passed is one for default, it is excluded from the definition of 'decree' and therefore the appeal filed by the petitioner in the District Court is not maintainable. This argument of the learned counsel is based on the assumption that once a suit is said to be pending there can be no order returning the plaint in the suit and there can be only dismissal of the suit for default. This assumption is not correct. In the Full Bench decision, : AIR1952Mad86 , about which mention had been made above, it was held that in a regularly filed suit when an order directing payment of additional court-fee is not complied with, the order passed was one rejecting the plaint and the Full Bench held that it is an order which is attracted by the definition of 'decree' in Section 2(92), Civil P. C. and is appealable as such. Therefore, even in pending suits regularly filed on even in pending suits regularly filed on the failure to comply with any direction for payment of additional court-fee, the proper order to be passed is to reject the plaint and not to dismiss the suit for default in payment of additional court-fee. Therefore even if filling of an application to sue as a pauper along with the plaint amounts to filing of a suit it does not in any way alter the position. The learned counsel has cited three decisions. Chidambaram v. Nataraja, Air 1939 Mad 80; P. Laxmi v. Ramiah, AIR 1954 Hyd 97 and Mautki Mistry v, Kamakhya Prasad, : AIR1958Pat264 (FB) as authorities for the proposition that on the presentation of an application to sue in forma pauperis along with a plaint, the suit is deemed to have been instituted. I do not think it is necessary to go into those decision in detail as already mentioned above, even assuming that the suit is deemed to have been instituted on the presentation of an application to sue as a pauper on the failure to pay court-fee within the time granted the proper course is only to reject the plaint and not dismiss the suit for default.

12. As already said above, the learned District Judge ought to have granted time to the petitioner for payment of the court-fee. Accordingly the Civil Revision Petition is allowed and the petitioner is granted one month time from the date of the receipt, of the records by the lower court. In the circumstances of the case I direct the parties to bear their respective costs in this revision petition.

13. Revision allowed.


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