1. This is plaintiffs appeal from the judgment and decree of the Court of 1st Additional District Judge, Jabalpur, dismissing his suit No. 20-A of 1951.
2. The plaintiff had filed an application early in 1951 for permission to sue in forma pauperis. That application was dismissed on 19-6-1951 and the plaintiff was directed to bear his own costs and to pay the costs of the present defendants who were the non-applicants in those proceedings. The present suit was thereafter filed in the ordinary manner on 27-12-1951 without payment of the costs of the previous proceedings.
The amount payable to defendant No. 1 was offered in Court by the plaintiff on 30-4-1952 but was refused. The costs were then deposited in Court on 14-8-1952. So far as defendant No. 2 is concerned, his costs amounted to Re. 1/-, but he made 110 objection to the institution of the suit on any allegation of non-payment. The lower Court dismissed the suit holding that as the plaintiff had not paid to defendant No. 1 his costs before instituting the suit, which contravenes Order 33, Rule 15, Civil Procedure Code, the suit was liable to be dismissed.
3. The dispute relates to a house situate in Miloniganj, Jabalpur. It first belonged to one Chukhar who sold it to Baldeo Prasad by a registered sale deed, dated 24-1-1927. Baldeo Prasad in his turn sold it to Chokheylal, defendant No. 2, by a registered instrument, dated 28-2-1951. The house was, however, sold in Court auction in execution of the decree in civil suit No. 642 of 1938, obtained by Seth Rupchand against one Gopilal, and was purchased by the defendant No. 1, Dulichand, on 2-2-1940.
A sale certificate was issued in his favour on 9-3-1940. It is alleged by him that he took possession of the house in pursuance of the Court sale on 17-3-1940. The date of his taking possession, according to the plaintiff, however, was 28-2-1942. The date when defendant No. 1 actually took possession is material to determine the question of limitation, if it is held that the suit should be deemed to be instituted on the date when the costs of defendant No. 1 were offered and refused.
4. The provision in Section 413 of the old Civil Procedure Code (Act XIV of 1882), which is analogous to Order 33, Rule 15 of the present Code, was the subject of interpretation in Mrinalini Debi v. Tinkauri Debi, 16 Cal W N 641 (A). In that case, it was held that although Section 413 makes it a condition precedent to the institution of a suit in the ordinary way by a person whose application to sue in forma pauperis has been rejected, that he should first pay the costs incurred by the Government in opposing the application, the suit ought not be dismissed for non-payment on such costswhen no demand for its payment was made at any time either on behalf of Government or by Court. A similar view would also govern the case of a private party who was allowed the costs of the application to sue in forma pauperis. This interpretation, namely, that Order 33, Rule 15, Civil Procedure Code, contemplates that something has to be done by somebody other than the plaintiff and that it is not a question merely of the plaintiff taking some step in the matter of payment of the costs was also taken by the Bombay High Court in Abdul Rahman v. Aminabi, AIR 1943 Bom 409 (B). In the Bombay case, therefore, it was held that the payment of the costs of a pauper application directed to be paid is not a condition precedent to the institution of an ordinary suit and can be waived, and all that the rule directs is that the costs must be paid, if the matter is brought to the notice of the Court and the payment is not waived. It was also held that if the costs are not paid initially, then the Court should reject the plaint on presentation, but it is not bound to do so and may subsequently stay the suit pending the payment.
5. In Ramkrishna v. Vandaya Thevar, AIR 1936 Mad 24 (C), it was held that if costs are paid after the suit is instituted the suit should be treated as having been instituted on the date on which the costs are paid. This view was followed in the subsequent decision by the Madras High Court in Siva Rao v. Ramajogarao, AIR 1943 Mad 547 (D). As against this view, we respectfully agree with the observations of Beamont C. J. in Abdul Rahman v. Aminabi (B) (supra) that it would lend to serious practical difficulties, if it is held that the suit should be deemed to be instituted when the costs are paid.
6. The Allahabad High Court, on the other hand, has taken a strict view of Order 33, Rule 15, Civil Procedure Code in Mahadeo Sahai v. Secretary of State, AIR 1932 All 312 (E). It was observed that the provision is imperative and the Court is bound to dismiss the suit it costs were not paid before it was instituted. These observations were however, obiter dicta, but they were affirmed in Shiam Sunder Lal v. Savitri Kunwar, ILR58 All 151: (AIR 1935 All 723 (FB)) (F) by a Full Bench of the Court.
In that case, the only question involved was whether the words 'Costs, if any incurred' include the costs which are actually incurred but are not awarded by the Court. The question as regards the effect of the non-payment of scheduled costs at the time of the presentation of the plaint was not, therefore, a matter for decision by their Lordships, and the observations thereon were also in the nature of obiter dicta.
7. Order 33, Rule 15, Civil Procedure Code is as below :
'An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper,'
It appears to us on a reading of the rule that what it intends is to secure to the parties the payment of the costs awarded by the Court and has not the effect of negativing the right of the plaintiff to institute the suit in the ordinary manner. It may be noted that a right to bring a suit in the ordinary way would exist independently of the rule and would not be affected by the mere dismissal of the application for permission to sue as a pauper.
The condition therefore, can only be construed as giving a benefit to the opposite party to be able to realise the costs without having to take steps for realisation. Such a condition is not binding on the party for whose benefit it is enacted and can, therefore, be waived by it. This matter has been discussed by Craies on Statute Law, 5th Edition, on pages 248 to 250. In Park Gate Iron Co. v. Goates, (1870), 5 CP 634 at p. 637 (G), Bovill, C. J., said as regards the provisions of Section 14 (13 and 14 Vic. c. 61) as below :
'The provisions of Section 14, that there shall be notice of appeal and security, seem to me more in the nature of procedure and practice, and to have been intended for the benefit of the respondent. It is not a matter with which the public are concerned. If that be so, it falls within the rule that either party may waive provisions which are for his own benefit, and it comes within the case of Graham v. Ingleby, (1848) 1 Ex 651 (H).'
Accordingly we respectfully agree with the view taken by the Bombay High Court that the condition of payment of costs is not mandatory and can be waived or enforced during the pendency of the suit.
8. So far as defendant No. 1 is concerned, the condition of payment of costs should be deemed to have been complied with when the offer was made but was refused. The prosecution of the suit, therefore, against him cannot be barred. As regards defendant No. 2, he did not raise any objection either to the institution or prosecution of the suit. So far as he is concerned, therefore, he should be deemed to have waived the right to realise the costs. It may also be noticed that the costs awarded to him were negligible, and this also supports the view that he must have waived the right to realise them.
9. The suit has, therefore, to be tried onmerits. The appeal is accordingly allowed, thedecree of the lower Court is set aside and the suitis remitted to it for trial in accordance with law.A certificate for refund of the court-fees paid onthe memo of appeal shall be issued to the appellant. Costs of the appeal shall abide the resultof the suit.