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Chunna Mal Vs. Bhagwant Kishore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All584
AppellantChunna Mal
RespondentBhagwant Kishore
Excerpt:
- - 1. on the facts as given in the order of reference it appears that the opposite party filed an application for permission to sue as a pauper on 17th august 1934. there was some inquiry as to his pauperism and the application was opposed by the defendant as well as by the government pleader. but there is also no doubt that at that time the view prevailing in this court was that after a plaint which is insufficiently stamped is filed in court, there was no provision under which the court could allow further time for making good the deficiency: 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. the.....sulaiman, c.j. and bennet, j.1. on the facts as given in the order of reference it appears that the opposite party filed an application for permission to sue as a pauper on 17th august 1934. there was some inquiry as to his pauperism and the application was opposed by the defendant as well as by the government pleader. on 29th september 1934, the court held that the applicant was not a pauper and rejected the application with costs. on 1st october 1934 the applicant filed another application purporting to be under order 47, rule 1, civil p.c., for review of the previous order on the ground that some evidence had not been recorded and that he was in fact a pauper, and also asking that the court should have allowed the applicant time to deposit the necessary court-fee. the learned munsif.....
Judgment:

Sulaiman, C.J. and Bennet, J.

1. On the facts as given in the order of reference it appears that the opposite party filed an application for permission to sue as a pauper on 17th August 1934. There was some inquiry as to his pauperism and the application was opposed by the defendant as well as by the Government Pleader. On 29th September 1934, the Court held that the applicant was not a pauper and rejected the application with costs. On 1st October 1934 the applicant filed another application purporting to be under Order 47, Rule 1, Civil P.C., for review of the previous order on the ground that some evidence had not been recorded and that he was in fact a pauper, and also asking that the Court should have allowed the applicant time to deposit the necessary court-fee. The learned Munsif came to the conclusion that there was no case made out for review of the order so far as it held that the applicant was not a pauper and should not be allowed to sue as a pauper, but ordered that he should be allowed to deposit the court-fee by 30th November 1934. The defendant has come up in revision against this order challenging its legality. Although there has been no direct conflict of opinion in this Court, there is a divergence of opinion as regards some other High Courts. But the preponderance of opinion is undoubtedly in favour of the present applicant. The following questions have therefore been referred to us for answers:

(1) Whether while rejecting the application for permission to sue as a pauper the Court can under Section 149 Civil P.C., allow the applicant to pay the requisite Court-fee and treat the application as a plaint.

(2) Whether after rejecting the application for permission to sue as a pauper, can the Court by a separate and subsequent order allow the applicant to pay the requisite court-fee under Section 149, Civil P.C., and treat the application as a plaint.

2. It may in one sense be said that the case in Naraini Kuar v. Makhan Lal (1895) 17 All 526, is an authority for the proposition that where an application for leave to sue as a pauper has been refused the Court has no power to grant time to the plaintiff to deposit the Court-fee later.

3. The case in Abbasi v. Nanhi Begam (1896) 18 All 206, is somewhat on the same lines. But there is also no doubt that at that time the view prevailing in this Court was that after a plaint which is insufficiently stamped is filed in Court, there was no provision under which the Court could allow further time for making good the deficiency: see Balkaran Rai v. Gobind Nath Tiwari (1890) 12 All 129. Now we have Section 149, Civil P.C., which expressly empowers a Court to allow a person by whom court-fee is payable on a document filed in Court to pay the amount within a time fixed by it. Following the principle laid down in Rajendra Prasad v. Gopal Prasad (1929) 115 IC 678, another Bench of the Patna High Court in Sudhir Kumar Choudhuri v. Jagannath Marwari 1935 Pat 193, has expressed the same view. This was also the view expressed by the Bombay High Court in Keshav Ramachandra v. Krishnarao Venkatesh (1896) 20 Bom 508, and the Calcutta High Court in Aubhoy Churn Dey v. Bisseswari (1897) 24 Cal 889, and the Nagpur Judicial Commissioner's Court in Pratapchand v. Atmaram 1933 Nag 237. On the other hand the Madras High Court in Maria Thangathammal v. Iravatheswara Iyer 1916 28 IC 504 and Balaguru Naidu v. Muthurathnarn Iyar 1924 76 IC 767, has taken a contrary view. A Bench of the Patna High Court in Bank of Behar, Ltd. v. Ramchanderji Mabaraj 1929 Pat 637 also expressed a similar view which was not followed subsequently in Patna itself. Recently the Calcutta High Court in Jagadiswari Debi v. Tinkari Bibi 1936 Cal 28, has held that court-fee can be allowed to be paid even if the applicant is not allowed to sue as a pauper.

4. The cases laying down the contrary view proceed mainly on the ground that the matter is settled by the pronouncement of their Lordships of the Privy Council in Stuart Skinner v. William Orde (1878) 2 All 241. Their reasons are not based so much on the language of the rules in the present Code of Civil Procedure. This case however was distinguished by the Allahabad High Court in Naraini v. Makhan Lal (1895) 17 All 526. The case before their Lordships of the Privy Council was a case where an application to sue as a pauper had not been refused definitely but prior to the application being granted and whilst the question was still under enquiry and investigation the plaintiff had converted the matter into a regular suit and was prepared to give up the advantages or disadvantages of the position he might have become possessed of if an application to sue in forma pauperis had been granted. The learned Subordinate Judge actually allowed him to convert the application into a regular plaint but had held that the period of limitation for the suit must be computed from the date of such conversion which placed the plaintiff out of Court. The High Court also took the view that although the plaint could not be rejected altogether and should be retained as a plaint it should be taken to have bean converted into a plaint only from the day when court-fees were paid. Their Lordships of the Privy Council were careful to point out that:

The Act provides what shall happen if the prayer of the petition be granted by Section 308. It also provides by Section 310 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.

5. Their Lordships then proceeded to consider what would be the right principle governing a case which was not so provided in the statute and pointed out that:

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.

6. Their Lordships then observed:

This case which is not provided for by the Act approaches more neatly to the state of things contemplated by Section 303 than that contemplated by Section 310.

7. As there were no negative words in. the Act 8 of 1857 requiring the rejection of the plaint under circumstances like those before their Lordships nor anything in its enactments which obliged their Lordships to say that the petition should not be considered as a plaint from the date that it was filed, it was held that it would cause grave injustice if that wore not to be the practice. Their Lordships in particular referred to the provisions of the Explanation to Section 4, Lim. Act, 9 of 1871, under which in the case of a pauper a suit was deemed to be instituted when the application for leave to sue as a pauper was filed. It was accordingly held that when the Court below had converted the application into a plaint the suit must be deemed to have been instituted when the application was originally filed. Their Lordships no doubt emphasised that the document contained in itself all the particulars the statute required in a plaint and plus these a prayer that the plaintiff may be allowed to sue in forma pauperis but their Lordships did not anywhere lay down that the document consists of two separate documents written out on a single paper, namely a plaint and an application for leave to sue as a pauper,' and even if the application to sue as a pauper be rejected the plaint still stands and remains undisposed of until some separate order were passed on it. On the other hand their Lordships clearly remarked: 'The statute also provides by Section 310 what shall be the effect of a rejection of the petition.' It is therefore apparent that their Lordships intended to lay down that where an application is granted the position is governed by the old Section 308; and where the application is rejected the position is governed by Section 310. Their Lordships were dealing exclusively with a case which was not expressly provided for in Act 8 of 1859. It is therefore not possibles to hold that the question which arises in the present case is conclusively determined by the pronouncement in Stuart Skinner v. William Orde (1878) 2 All 241. The matter must be examined from the standpoint of the express provisions in the Code which governs this case. It is to be noted that Section 310, Act 8 of 1859, which was the Act in force at the time when their Lordships decided Stuart Skinner v. William Orde (1878) 2 All 241, is not identical with the corresponding rule, Order 33, Rule 15. Nor is there any specific provision in the new Limitation Act corresponding to Section 4 of the old Limitation Act. There is considerable difficulty in holding now that the document filed by such an applicant is a composite document, both an application for leave to sue as a pauper and also a plaint. Order 33, Rules 1 to 7 speak of the document as an application. Rule 8 then provides that where the application is granted it shall be numbered and registered, and shall be deemed to be the plaint in the suit, etc. etc.

8. Thus it is the same document which was being treated as an application which must be deemed as a plaint when the application is granted. The scheme of this order is that when an application for leave to sue as a pauper is filed, the Court may under Rule 5 after examining the applicant, if necessary, reject the application on any of the five grounds mentioned therein. That is a stage before the defendant is called upon to contest the application and before even any notice is issued to the Government Pleader to oppose it, if he so desires. But once notices have been issued and evidence has been taken then the procedure at the hearing is governed by Rule 7 under which the Court shall either allow or refuse to allow the applicant to sue as a pauper. This is a stage where the parties have given some evidence and costs have, therefore, been incurred. Now Rule 8 deals with a case where the Court grants the application. Rule 15 deals with a case where there is an order refusing to allow the applicant to sue as a pauper which is declared to be a bar to any subsequent application of the like nature. There is a further provision that the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such rights provided that he first pays the costs, if any, incurred. It has been held by a Full Bench of this Court, in Shiam Sunder Lal v. Savitri Kunwat 1935 ALJ 857, that the payment of the co3ts is a condition precedent to the institution of the suit and that accordingly if a suit is filed without the plaintiff having previously paid the costs incurred in the proceedings relating to his pauperism, then the suit is not at all maintainable and that the defect cannot be cured by a subsequent payment of the co3ts during the pendency of the suit. Now there was no such provision in Section 310 of the old Code and it was not at that time incumbent on a plaintiff to pay the co3ts incurred in the proceedings relating to pauperism before instituting his suit. It is, therefore, clear that if the Court were to allow the applicant even 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 pro3ecute his claim without having had to pay in the first instance the costs incurred in the proceedings relating to the inquiry into his pauperism. Such an interpretation of the provisions would be in direct conflict with the specific provisions in Order 33, Rule 15.

9. There would be various other difficulties in holding that the document is of a composite character and that there are really two documents executed on one paper. If the application be treated as a plaint for one purpose and as an application for leave to sue for another purpose from the very beginning even before it has been granted, then the document as a plaint will be governed by Order 7, while the same document as an application would be governed by Order 33. Now it may happen that the allegations contained in the application do not disclose a cause of action and the Court may reject the application on that ground. It would then follow that the rejection of that application would be an order under Order 33, Rule 5(d) and, therefore, not appealable, while the same order would be an order under Order 7, Rule 11(a) which read with Section 2 would be a decree and would be appealable. This would be a serious anomaly in treating the document to be of a composite character. Again Order 33, Rule 5 allows the Court to dismiss the application on grounds quite different from those on which a plaint is to be rejected under Order 7, Rule 11. If the allegations show that the claim is barred by any law the plaint may be rejected and there would be an appeal from that decree. But the Court in dealing with the application for leave to sue as a pauper cannot dismiss the application on any such ground.

10. It is contended on behalf of the opposite party that under Section 149, Civil P.C., which has been newly added in the present Code, there is ample power conferred upon a Court to allow time for paying the court-fee on any document filed in Court and that accordingly such power must be deemed to exist in the case of an application for pauperism as well, even though it has been rejected. But taking Section 149 strictly it is impossible to say that at the time the application for leave to sue as a pauper was filed it was in any way insufficiently stamped. It only becomes insufficiently stamped when the Court converts it into a plaint and allows time to the applicant to make good the deficiency. Until then it is not a document which is in any way insufficiently stamped. Then again the application for leave to appeal can be entertained only if it has been presented in the manner prescribed by Rules 2 and 3 of Order 33, whereas the same document would not be invalid if it were a plaint.

11. Lastly there is another serious difficulty in treating the application as a composite document. Section 149 gives discretion to the Court to allow court-fee to be made good during a further time allowed. The Court is not bound to grant such further time. Where it is satisfied that the applicant acted bona fide or was led by some mistake to make the application in forma pauperis it may very well allow him time to make good the deficiency. On the other hand if the Court is satisfied that he acted fraudulently and dishonestly, it may very well refuse to grant him time to deposit the court-fee, particularly when the period of limitation has expired. But if the application is to be treated as if it were a plaint also then the provisions of Order 7, Rule 11 will be applicable and when the relief claimed is properly valued, but the paper is insufficiently stamped, the Court would have to require the plaintiff to supply the requisite stamp paper ' within a time to be fixed by the Court;' and the Court will have power to reject the application only if the plaintiff fails to deposit the requisite stamp paper within the time so allowed. Thus under Rule 11 the plaintiff would be entitled as of right to insist on the Court giving him some time at least to make good the deficiency. In such a case it would no longer be a matter of discretion for the Court, but a matter of obligation. The provisions, therefore, would come in conflict with the provisions of Section 149.

12. All these considerations lead to the conclusion that the scheme of the Code of Civil Procedure is not that the application is from the very start a sort of a double document both a plaint and an application and that if the application is dismissed the plaint still remains and the suit is still pending until an additional order is passed either admitting or dismissing the suit. The true position seems to be that in the case of paupers the legislature has directed the person, provided he proceeds in the manner prescribed to present an application for leave to sue as a pauper containing all the necessary particulars required for a plaint. If the application does not militate against any of the requirements in Section 5 and is accordingly not rejected, and the Court is satisfied that the applicant is a pauper, it will of course allow him to sue as a pauper. But if on further enquiry it is found that the requirements of Rule 5 are not fulfilled the Court would refuse to allow the applicant to sue as a pauper. It is only when the application is granted that the application is to be deemed the plaint in the suit. When the Court refuses to allow the applicant to sue as a pauper then the position is governed by the provisions of Rule 15, and it is no longer open to the applicant to say that his plaint is still on the record and that the suit is still pending and he is entitled under Section 149 to pay the court-fee.

13. It therefore seems clear that the 3oheme of the Civil Procedure Code is that the application for leave to sue as a pauper is an application, though when granted it is to be deemed as a plaint in the suit and the case is to proceed as if the suit had been filed on the date when the application had been made. This view is also supported by the observations made by a Bench of this Court in Nur Muhammad v. Firm Maulvi Jamil Ahmad 1919 52 IC 688, where it was said that in application for leave to sue as a pauper is not a plaint and it only reaches the 3tage of a plaint when it is granted. Again there is an observation to the same affect in the Full Bench case in Shahzaai Begum v. Alakh Nath 1935 ALJ 681 at p. 686, where it was said that there is a distinction drawn between the institution of a suit by a pauper and the filing of an appeal by a person who is unable to pay the court-fee. Under Order 33, there is only one application which is required to be filed, and if that application is allowed then under Rule 8 it is to be numbered and registered and has to be deemed the plaint in the suit and the suit is then to proceed in all other respect, as a suit instituted in the ordinary manner. On the other hand if the application filed by the plaintiff is dismissed there is no other document left before the Court which can be proceeded with. It is next contended on behalf of the opposite party that there would be considerable hardship on the plaintiff if it be held that the Court has no power to allow him to deposit the court-fee within an extended time. In actual practice there may be no hardship at all. If the plaintiff does not wait till almo3t the last day of limitation no difficulty would arise.

14. Even it he tiles his suit almost at the end of the period of limitation, but takes care to see that before the Court passes an order refusing to allow him leave to sue as a pauper he offers to pay the court-fee and requests the Court to convert the application into a plaint, there may be no difficulty. It is only when he allows the period of limitation to expire and does not move the Court to allow him to pay the court fee before the Court passes an order refusing to allow him to sue as a pauper that his position becomes difficult; but for this he has himself to thank. In ordinary practice, if a Court is satisfied that the case is a fit one in which time should be allowed to the applicant, it may not actually pass an order under Order 33, Rule 7, refusing to allow him to sue as a pauper, but may postpone the case and grant him time to make good the deficiency. In such an event, namely where the Court neither refuses to allow him to sue as a pauper nor grants leave to sue as a pauper, the case would not be provided for by any specific provisions of O.33, and would therefore be governed by the ruling of their Lordships of the Privy Council in Stuart Skinner v. William Orde (1878) 2 All 241. The Court would then have power to allow the application to be converted into a plaint. The plaint would then be deemed to have been instituted on the date when the application was originally filed and the court-fees can be deposited within the time fixed by the Court.

15. The first question assumes that the Court rejects the application and at the same time allows the applicant to pay the requisite court-fee. It may be pointed out that the words 'reject the application' occur in Order 33, Rule 5 but not in Rule 7 which merely speaks of a refusal to allow him to sue as a pauper. If the Court has passed an order rejecting the application under Rule 5 then it may well be that Rule 15 would not be a bar at all which is operative only in the case where there is an order refusing to allow the applicant to sue as a pauper which happens when after receiving evidence the Court makes an order under Rule 7(3). For instance, if the Court has rejected the application on the ground that it was not framed and presented in the manner prescribed by Rules 2 and 3, there can be no bar to a fresh application being filed, nor would there be any bar to any fresh suit being filed, or it may well be that the allegations did not disclose a sufficient cause of action in which case the applicant may file a fresh application for leave to sue as a pauper containing allegations which do show a cause of action. If the question arises, that while refusing to allow the applicant to sue as a pauper under Order 33, Rule 7 the Court also allows him to pay the requisite court-fee, then the answer to the question must be in the negative. The Court having refused to allow him to sue as a pauper must follow the provisions of Rule 15 which should not be evaded. The applicant cannot without paying the costs of the proceedings be entitled to institute a suit, and if he does pay the costs then the suit can be deemed to have been instituted only from the date when such costs have been paid. In the view expressed above the answer to the second question is obviously in the negative. Order 33, Rule 7 may well 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.

Allsop, J.

16. Two questions which have been referred to this Bench are: -

(1) Whether while rejecting an application for permission to sue as a pauper, the Court can, under Section 149, Civil P.C., allow the applicant to pay the requisite court-fee and treat the application as a plaint? and (2) Whether after rejecting an application for permission to sue as a pauper, the Court can by a separate and subsequent order allow the applicant to pay the requisite court-fee under Section 14.9, Civil P.C., and treat the application as a plaint?

17. It must be stated that the terminology of the two questions is in one particular not quite accurate. An application for permission to sue as a pauper may be rejected under the provisions of Order 33, Rule 5 before any notice is served upon the opposite party or upon the Government Pleader. If it is not so rejected, notices are issued and thereafter the Court decides under Rule 7 whether the application should be allowed or not. If the application is not to be allowed the proper order under Order 33, Rule 7 is that the Court refuses to allow the applicant to sue as a pauper. In the case which gave rise to the reference the order of the Court below was passed after contest and consequently it was an order refusing to allow the applicant to sue as a pauper and not an order rejecting the application for permission to sue as a pauper. The questions therefore really raise the point whether the Court can exercise its discretion under Section 149, Civil P.C., either at the time when it passes an order refusing to allow the applicant to sue as a pauper or at some subsequent time after it has passed an order refusing to allow the applicant to sue as a pauper. The questions have no reference to orders rejecting an application for permission to sue as a pauper under Order 33, Rule 5. As one of the members of the Bench which made the reference I may explain that the lower Court referred to its order as one rejecting the application to sue in forma pauperis and that the distinction between an order rejecting an application and an order refusing to allow the applicant to sue as a pauper was not raised before the Bench. It has been suggested that an application for leave to sue as a pauper is in effect a document comprising two separate applications, namely an application which amounts to a plaint and which asks for relief against the defendant or the opposite party and an application that the plaint may be treated as such without the payment of the requisite court-fees upon the ground that the applicant is a pauper within the meaning of Order 33, Rule 1, Civil P.C.

18. In my opinion the application for leave to sue as a pauper cannot be treated properly as a composite document in the sense that it requires two separate orders by the Court if the application is rejected, namely, an order refusing to allow the applicant to sue as a pauper and a subsequent order rejecting the plaint. It appears from the manner in which the rules have been framed that it was not intended that an application under Order 33 should be regarded as containing two separate applications requiring separate orders. The rules which apply to plaints under Order 7 are not the same as those which apply to applications under Order 33. If there had been an intention that the applicant should put in a plaint accompanied with a separate prayer to be allowed to sue as a pauper, there is no reason why the rule should not have been drawn up in the same way as the rule for pauper appeals under Order 44, where a person who wishes to appeal in forma pauperis is required to put in his application accompanied by memorandum of appeal. I think therefore that an application under Order 33, Civil P.C., for permission to sue as a pauper must be treated as an application requiring only one order by the Court.

19. On the other hand there is the authority of Stuart Skinner v. William Orde (1878) 2 All 241 that such an application as it contains all the particulars required in regard to plaints in suits is one which can be converted into a plaint by payment of the requisite court-fee on the part of the applicant and if it is so converted that it shall date as a plaint from the time when the application itself was presented. Apart from the authority of this case, the rules themselves show that the application can be converted into a plaint because if the Court allows the application, that is if the Court directs that the court-fee need not be paid, the application is converted into a plaint under the rules in Order 33 and is to be treated as a plaint filed on the data when the application was filed. It is not contended that the decision in Stuart Skinner v. William Orde (1878) 2 All 241 is no longer good law owing to subsequent modifications in the Civil Procedure Code. It is admitted that the Court may allow court-fees to be paid upon the application so as to convert it into a plaint provided such fees are paid before an order is passed refusing to allow the applicant to sue as a pauper.

20. A reference has been made to the provisions of Order 33, . 15 which were not in force in their entirety at the time when the case in Stuart Skinner v. William Orde (1878) 2 All 241 was decided. I do not think that the provisions of this rule affect the question in issue. The rule in terms lays down that 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. That is one of the provisions of the rule. The other provision is that such an order shall not be a bar to a subsequent suit, provided that the applicant, before he institutes a suit, pays the co3ts incurred by the Government and by the opposite party in opposing the application for leave to sue as a pauper. The questions which have been referred to this Bench do not contemplate the institution of a subsequent suit by the applicant for leave to sue as a pauper and therefore the provisions of Order 33, Rule 15 do not in terms apply, It may perhaps be said that the intention of the legislature is that an applicant to sue as a pauper, if leave is refused to him, should not be allowed to proceed in any way unless he has paid the costs of the Government and the opposite party, but this is not what the rule says and an objection of this kind would apply equally to the case of an applicant who asks to be allowed to pay the court-fees after costs have been incurred but before an order refusing to allow him to sue as a pauper has been passed. It is admitted that the provisions of Order 33, Rule 15 would not prevent the Court from exercising its discretion under Section 149 at that stage of the proceedings although costs might have been incurred.

21. Another point I think is that the rules in Schedule 1, Civil P.C., are to be treated as subsidiary to the provisions of the body of the Code and that they should not, if there is any doubt about the matter, be allowed to modify those provisions. It is certainly laid down in Section 121 of the Code that that the rules in Schedule 1 shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of the Code, but these rules at the same time are subject to alteration and annulment by the various High Courts, and any rules which may be framed by those Courts must under Section 128 of the Code be not inconsistent with the provisions in the body of the Code. I think it is obvious that the rules in Schedule 1 were intended by the legislature to be consistent with the provisions contained in the body of the Code and that consequently if there is any appearance of inconsistency between the rule and those provisions, the provisions should prevail over the rules. Section 149 of the Code allows a Court discretion at any stage to permit the payment of the court-fee upon any document in respect of which a fee is payable and nothing in the rules should be allowed to take away that discretion. It has been suggested that the provisions of Section 149 do not, strictly speaking, apply because the application for leave to sue as a pauper is not an application which requires a court-fee as payable on the plaint. Once however it is admitted that the application may be converted into a plaint by payment of the court-fee and that point has been decided in Stuart Skinner v. William Orde (1878) 2 All 241, it seems to me that the Court can allow the payment of court-fee only under the provisions of Section 149, Civil P.C. If those provisions did not exist, it might perhaps be said that the Court had some inherent jurisdiction but when there is a specific provision in the Code, it seems to me that the Court must be held to be acting in accordance with that provision. The position then is that the Court has before it in the application for leave to sue as a pauper a document which contains all the particulars required for a plaint and that it may certainly at one stage of the proceedings allow the applicant to pay the court-fee which would convert the document into a plaint and if the court-fee is paid, the document is converted into a plaint. The only question which remains therefore is upto what extent the Court may exercise the discretion allowed by Section 149, Civil P.C. In my opinion, the Court may exercise that discretion at any time during which it is seized of the matter, that is at any time when there is a proceeding before it. As I have already said, I think that the application for leave to sue as a pauper must be regarded as one application which does not require more than one order of the Court and it follows from this that the proceeding based on the application must come to an end as soon as the Court passes an unconditional order refusing to allow the applicant to sue as a pauper. The consequence is that the second question which has been referred to this Bench must be answered in the negative, although as I shall presently show the answer should be subject to a proviso.

22. There remains the first question which has been referred to us. I think that in answering that question we should pay more attention to the substance than to the form of the order. The question assumes an order which contains two parts, namely a refusal to allow the applicant to sue as a pauper and a permission under the provisions of Section 149, Civil P.C., granted to the applicant to stamp his application so as to convert it into a plaint. I think that there can be no doubt that the Court at the time when it passes such an order would have jurisdiction under Section 149 to allow the application to be stamped as a plaint and I do not think that that discretion should be taken away because as a matter of form that permission is accorded at the same time and on the same document as an order refusing to allow the applicant to sue as a pauper. If the Court passed an order allowing the applicant to stamp the document and signed it and immediately afterwards wrote out another order refusing to allow the applicant to sue as a pauper, what would be the effect? The first order would be one within the jurisdiction of the Court. Would the second order be regarded as cancelling the first order? I think that it would not and the rights of the parties surely should not be affected merely because the Court writes an order on one piece of paper and appends one signature to it instead of writing two orders on separate pieces of papers and appending two signatures to such papers. I am of opinion that too much importance should not be attached to the fact that the Court intends to refuse to allow the applicant to sue as a pauper and writes an order to that effect. The position might arise where a Court exercises its discretion under Section 149, Civil P.C., and gives the applicant a period of say three months, within which to stamp his application as a plaint and thereafter at the request, perhaps of the Government Pleader, who wants an order for costs passed an order within the three months before the document is actually stamped saying that the applicant is not allowed to sue as a pauper and must pay co3ts. I do not see how that subsequent order can affect the previous order allowing the applicant to stamp the document.

23. I think further that any order allowing the applicant to stamp his application as a plaint necessarily implies that the application to sue as a pauper is not allowed. A person makes an application for leave to sue as a pauper and at a subsequent date asks for permission to stamp the application and treat it as a plaint. This surely implies that the application for leave to sue as a pauper as such is withdrawn. I do not think that any person who makes an application to the Court to put an end. to proceedings instituted by him can do so merely by withdrawing the previous application upon which those proceedings were instituted. If he does withdraw it, the Court passes an order that the application is rejected, but if; may also and often would, at the same time, pass an order that costs are to be paid. The mere withdrawal has no effect and properly speaking if the applicant asks for permission to stamp his application, and treat it as a plaint, ha impliedly withdraws his application for leave to sue as a pauper, and the Court then should pass an order saying that it refuses to allow the applicant to sue as a pauper. At whatever stage therefore an application for leave to sue as a pauper is stamped under the provisions of Section 149, there is a refusal to allow the applicant to sue as a pauper, and these considerations would apply even to cases which are covered by the decision in Stuart Skinner v. William Orde (1878) 2 All 241. My conclusion is that a Court when it refuses to allow an applicant under Order 33 to sue as a pauper may at the same time give him permission to stamp his application, and treat it as a plaint. The point is that we should took to the substantial intention of the Court at the time when it still has jurisdiction under Section 149, Civil P.C., and if it means to exercise that jurisdiction before the proceedings came to an end, we should not say that it is incompetent to do so merely because it expresses its intention at the same time not to allow the applicant to sue as a pauper.

24. I now return to the second question. I have indicated that the question should be answered in a certain way, but with a proviso. That proviso is that the Court may having passed an order refusing to allow the applicant to sue as a pauper can again exercise its jurisdiction under the provisions of Section 149 if it, in some way, is again seized of the application. I would answer the first question put to this Bench in the affirmative and the second1 question in the negative with the proviso that a Court having once passed an order refusing to allow an applicant to sue as a pauper may after the proceedings have been re-opened exercise jurisdiction under Section 149, Civil P.C.

25. If the application for permission to sue as a pauper has been rejected under Order 33, Rule 5, then the answer to the first question is in the affirmative; but if the Court has refused to allow the applicant to sue as a pauper under Order 33, Rule 7(3), then the answer is in the negative. The answer to the second question is in the negative.


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