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Bir Ram Vs. Lachmi Rai - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All781
AppellantBir Ram
RespondentLachmi Rai
Excerpt:
.....the court specifying the amount payable by the un-successful applicant to the government and the opposite party on account of costs and that in the absence of a formal order, there is no duty cast on the applicant to wade through the record of the case with a view to ascertain, as best as he can, the amount of costs that he ought to pay to the government and the opposite party. the government or the opposite party may have, in opposing the application for permission to sue in forma pauperis, incurred costs far in excess of the taxable cost, and it would manifestly be unjust to cast on the unsuccessful applicant the duty of playing the role of a taxing officer with a view to ascertain the amount of costs legally payable to the government or the opposite party. ' it is this 'formal..........on the ground that the plaintiff not having paid the costs incurred by the government and by the opposite party in opposing an application made by the plain, tiff to sue in forma pauperis was not entitled to maintain the present suit. the facts that have given rise to the present application are as follows: the plaintiff-applicant filed an application for permission to sue as a pauper. according to the application the claim against the defendant-opposite party was for a sum of rs. 500 and odd. the application was opposed both by the government and by the defendant and the learned small cause court judge on 18th may 1935 dismissed the application 'with costs', but directed that 'the court-fee shall be paid within two weeks and the plaint will then be registered'. no formal order.....
Judgment:
ORDER

Iqbal Ahmad, J.

1. This is an application in revision against a decree passed by a Small Cause Court Judge dismissing the plaintiff's suit on the ground that the plaintiff not having paid the costs incurred by the Government and by the opposite party in opposing an application made by the plain, tiff to sue in forma pauperis was not entitled to maintain the present suit. The facts that have given rise to the present application are as follows: The plaintiff-applicant filed an application for permission to sue as a pauper. According to the application the claim against the defendant-opposite party was for a sum of Rs. 500 and odd. The application was opposed both by the Government and by the defendant and the learned Small Cause Court Judge on 18th May 1935 dismissed the application 'with costs', but directed that 'the court-fee shall be paid within two weeks and the plaint will then be registered'. No formal order embodying the decision of the learned Judge was however prepared. The plaintiff then on 31st May filed an application for the amendment of the plaint and prayed that he be allowed to reduce his claim from a sum of Rs. 500 and odd to Rs. 249-8-0 and on the same date paid the requisite court-fee on the amount of the reduced claim. The application for amendment was opposed by the defendant and the learned Judge rejected that application.

2. The plaintiff came up in revision to this Court against the order of the Small Cause Court Judge rejecting the application for amendment. The revision application was allowed by a learned Judge of this Court and the case was sent back to the Small Cause Court Judge with the direction that he should allow the application for amendment and decide the case according to law. On receipt of the record, the learned Small Cause Court Judge allowed the application for amendment. The defendant then filed an additional written statement in which, for the first time, he pleaded that as the plaintiff had not paid the costs incurred by the Government and by him in successfully opposing the application for permission to sue as a pauper, the suit was not maintainable and in view of the provisions of Order 33, Rule 15, Civil P.C., and the Full Bench decision of this Court in Shiam Sunder Lal v. Mt. Saviti Kunwar : AIR1935All723 , the learned Small Cause Court Judge gave effect to this contention and dismissed the suit. In my judgment, the decision of the learned Judge of the Court below is contrary to law and cannot be sustained. Order 33 provides that the refusal of an application for permission to sue as a pauper is no bar to the institution of a suit by the applicant in the ordinary manner

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. This Proviso is mandatory and it was held in the Full Bench case referred to above that where a plaintiff has been un-successful in an application for permission to sue in forma pauperis and the Court has awarded costs to the Government and the opposite party, these costs must be paid prior to the filing of the plaint which commences the suit; and where the costs have not been paid or deposited prior to the institution of a suit, a Court is bound to dismiss the suit. But the Full Bench further laid down that:

Where the Court in dismissing the application has either disallowed costs or made no order as to costs, he is entitled to maintain his suit as an ordinary litigant without making any payment to the Government or to the opposite party in respect of the costs incurred in opposing the application.

4. In the case before me the Court by its judgment dated 18th May 1935 dismissed the application for permission to sue in forma pauperis 'with costs,' but, as stated above, no formal order specifying the costs allowed to the Government or the defendant opposite party was drawn up. The result is that the plaintiff-applicant could not be in a position to know the amount of costs that he had to pay to the Government or the defendant. In my judgment the provisions of Order 33, Rule 15, Civil P.C., though mandatory, must be strictly construed as they put a fetter on the inherent right of an individual to resort to a Court of law for the redress of the wrong done to him. I consider that the Proviso in Rule 15 quoted above comes into play only when there is a formal order of the Court specifying the amount payable by the un-successful applicant to the Government and the opposite party on account of costs and that in the absence of a formal order, there is no duty cast on the applicant to wade through the record of the case with a view to ascertain, as best as he can, the amount of costs that he ought to pay to the Government and the opposite party. To hold otherwise would lead to anomalous results. The Government or the opposite party may have, in opposing the application for permission to sue in forma pauperis, incurred costs far in excess of the taxable cost, and it would manifestly be unjust to cast on the unsuccessful applicant the duty of playing the role of a taxing officer with a view to ascertain the amount of costs legally payable to the Government or the opposite party. 'Judgment' is defined by Section 2(9), Civil P.C., as meaning 'the statement given by the Judge of the grounds of a decree or order.' Any direction as to payment of costs contained in the judgment cannot therefore be taken to be equivalent to a decree or order. The direction is only a statement given by the Judge for the order which must in the ordinary course be drawn up. 'Order' is defined by Section 2(14), Civil P.C., as 'the formal expression of any decision of a Civil Court which is not a decree.' It is this 'formal expression' which does and must contain the precise amount that is payable by the unsuccessful applicant to the Government or the opposite party and in the absence of such an order it is impossible for the applicant to know the exact amount of costs that he is called upon to pay. I therefore hold that unless, consequent on the dismissal of the application for permission to sue in forma pauperis, a formal order is drawn up by the Court specifying the amount of costs that the unsuccessful applicant is ordered to pay to the Government and the opposite party, Rule 15 of Order 33, Civil P.C., is no bar to the institution of a suit by the unsuccessful applicant in the ordinary manner on payment of the requisite court-fee. As in the present case no formal order was drawn up, the learned Small Cause Court Judge was wrong in dismissing the suit on the ground that the suit was barred by the provisions of Order 33, Rule 15, Civil P.C.,

5. There is yet another ground which renders the provisions of Rule 15 of Order 33 inapplicable to the present case. I have stated above that the Court, while dismissing the application to sue in forma pauperis, directed by its judgment that 'the court-fee shall be paid within two weeks and the plaint will then be registered'. This shows that the Court exercised the power vested in it by Section 149, Civil P.C., which gives the Court discretion 'at any stage' to allow a person to pay the whole or any part of the court-fee payable on a document that was not paid, and that the Court intended that the application to sue in forma pauperis should itself be treated as a plaint on the requisite court-fee being paid. That being so, there could be no question of the institution of a fresh 'suit in ordinary manner' within the meaning of Rule 15 of Order 33, Civil P.C., and therefore the Proviso to that rule could not apply. The plaintiff did pay the requisite court-fee on the amended plaint within the two weeks allowed by the Court and the Court was therefore not justified in dismissing the suit on the ground assigned by it. Ror the reasons given above, I allow this application, set aside the decree passed by the Court below and send the case back to that Court with the direction to restore the case to its original number and to try and dispose it of according to law. Costs here and hitherto will be costs in the. cause and will abide the result.


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