Prakash Narain, J.
(1) The plaintiff filed a suit for declaration to the effect that defendant No. 1 did not become Mutvalli of the waqf properties of Hazi Abdul Quyyum situate at HimaltonRoad, Delhi, either on the basis of the Toliatnama of 15/09/1947 or otherwise under the provisions of the Mohammaden Law. A consequential relief is sought that defendant No. 1 be restrained by an appropriate order from evicting or dispossessing the plaintiffs in pursuance of order of the Rent Controller dated 31/08/1960, passed in Rent Control Case No. 1684 of 1959 entitled Abdul Haq Pracha v.Qutub Uddin and others. The property in respect of which the injunctions sought is Shop No. 648, Himalton Road, Delhi. It is contended that the said order of Rent Controller is a nullity, having been passed without jurisdiction.
(2) The suit has been resisted on various grounds, inter alia, that it was not properly valued for the purposes of court-fees and no proper court-fees has been paid. Prithvi Raj, J. by his order dated 10/05/1972 held that the suit was not properly valued for the purposes of court-fees and he directed that the plaintiff should make up the deficiency in court-fees within one month. This led the plaintiffs to file Pauper Application No. 6 of 1972.
(3) It has been contended by the plaintiffs/applicants that they are not possessed of sufficient means to pay court-fees on the valuation of Rs. 55,000 and that they may be allowed to continue the suit informal pauperis. The application has been resisted by the defendants who have contended that the application is not in proper form as prescribed by Order 33 rule 2 Civil Procedure Code ., that the plaint in suit No. 302of 1972 must be rejected under Order 7 rule Ii Civil Procedure Code for noncompliance with the order of court dated May 10, 1972, it is not admitted that the plaintiffs were unable to pay the court-fees; and that there is no provision in law to permit a suit already filed to be continued as a suit in forma pauperis. It has also been contended that there is no subsisting cause of action and so, also the applications liable to be dismissed. The pleas of the defendants have been.traversed by the plaintiffs/applicants. On the pleadings of the partisan this application, B. C. Misra, J. settled the following issues:-
'1. Whether the petitioner's application for leave to proceed with the suit in forma pauperis is in accordance with order 33 rule 2 Civil Procedure Code O.P. petitioner.
2.Whether in view of the pendency of the suit, the petitiotier:)Cannot claim the benefit of Order 33 Civil Procedure Code so as to proceed with their suit in forma pauperis? O. P. Respondent.
3.What is the effect of the petitioners not complying with the order of the Court dated 10th of May, 1972, allowing them to pay the deficit court-fees?'
(4) After the issues were settled it was conceded on behalf of defendant No. 1 that the plaintiffs were paupers and were unable to pay court-fees. The only contest, thereforee, that remained between the parties was that the application was not maintainable and leave to continue the suit in forma pauperis should not be granted in the facts and circumstances of the case. The parties agreed that no evidence was necessary and so, the matter was posted for arguments.
(5) The issues as settled do not really bring out the controversy between the parties. Learned counsel are agreed that the real controversy between the parties is as follows:-
(A)Where a suit- has been resisted as an ordinary suit and the plaintiff does not pay the deficit in court-fees, though given time, but applies for permission to continue the suit as a pauper, can such an application be entertained?
(B)Whether there is any subsisting cause of action disclosed by the petition of plaint, if the same is treated as an application to sue as a pauper? In other words, whether the plaint is not liable to be rejected under clause (d)of rule 5 of Order 33 Civil Procedure Code .?
(6) On the first question as to whether the suit could be continued by moving the present application my attention has been invited to Mohammad Fateh Nasil v. Saradindu Mukherjee, : AIR1936Cal221 . It was held in this case on a review of previous decisions that in such a situation the application should not be rejected merely on the ground that the suit has already been registered as an ordinary suit. It should be considered on merits. To the same effect is the decision of Madras High Court in Parvathi Ammal v. Meenakshi Ammal, : AIR1951Mad841 , The Patna High Court in Makundi Mandal and others v. Haridas and others, : AIR1969Pat267 also held that there is no restriction in the power of the court to allow a case not instituted as a pauper suit to be continued as a pauper suit on proper application made by the plaintiff subsequently in accordance with law. In my view the real positioning law would be that the regular suit would technically come 'to an end if deficit in court-fees is not made up but that suit can be converted into a suit in forma pauperis if an application to sue as a-pauper moved subsequently is granted. It would be only a futile exercise to first reject the plaint under Order 7 rule 11 Civil Procedure Code and then consider the pauper application as a fresh institution. Taking a practical view I would not regard the pauper application moved subsequently to be barred, if it is moved according to law and if the same is granted to convert the previously filed suit into a suit informal pauperis.
(7) This brings me to the consideration of the question as to whether the present pauper application has been properly moved and complies with the provisions of Order 33 rules 1 to 4 of the Code of CivilProcedure.
(8) P.A. 6 of 1972 was filed by the plaintiffs and it was moved before the court by one of the plaintiffs and the counsel. This is sufficient compliance with rule I of Order 33 Civil Procedure Code On a perusal of the application I find that there is full compliance of rule 2.As far as compliance with rule 3 is concerned, I find that only one of the applicants was present at the hearing on 25/05/1972 but inasmuch as both of them have signed the application and there is nothing shown to me to the contrary it has to be assumed that it was presented by the applicants in compliance with rule 3. Obviously, the court did not consider examination of the applicants necessary for it ordered notice to the respondents on 25/05/1972.Therefore, the application is properly filed and it only remains to be seen whether the applicants are paupers and other conditions of rule 5 are fulfilled before granting it. As already noticed the only contest is with regard to the petition of plaint not disclosing any subsisting cause of action.
(9) Mr. Sabir Hussain, learned counsel for the applicants, has invited my attention to paragraphs 17 and 18 of the petition of plaint which forms part of the pauper application to show that there is a subsisting cause of action. According to the applicants defendantNo. 1 had filed his eviction petition on 28/10/1959 treating Qutub Uddin as a major and had asserted that the premises had been let out to Qutub Uddin who sub-let or assigned or parted with possession of the whole or part of the said premises to Siraj Uddin and Abdul Salim, the present plaintiffs/applicants. In the same petition defendant No. 1 further stated that sub-tenants were in possession since about nine months. As the eviction petition was held on 28/10/1959, thereforee, the possession of the plaintiffs/applicants started sometime in January, 1-959 and it could safely be assure thatQutub Uddin would have entered into a contract of sub-tenancy with the plaintiffs prior to giving possession to them. Qutub Uddin, it is alleged, was a minor on 10/12/1959 according to an affidavit of defendant No. 1 and the contract of tenancy or subtenancy was a nullity. thereforee, the Rent Controller could not pass any orders on the basis of those contracts as no relationship of landlord and tenant in the eye of law could subsist between defendant No. 1and Qutub Uddin nor could any sub-tenancy be lawfully created byQutub Uddin as he was a minor.
(10) Bakshi Gurcharan Singh appearing for the defendant-respondents referred to paragraph 7 of the plaint in which it is stated that defendant No. 1 filed eviction petition on 28/10/1959 in the court of the Rent Controller, Delhi. It was alleged in the eviction petition that Shop No. 648 was in the tenancy of one Mohd. Shafi who had sub-let the same to the plaintiffs. It is also said in paragraph 7 that defendant No. 1 did not make the other heirs ofMohd. Shafi a party to the eviction proceedings and concealed thefact from the Tribunal that plaintiff No. 1 was Qutub Uddin's real brother-in-law and plaintiff No. 2 is real maternal uncle. It is pointed out that adverse possession pleaded by the plaintiffs was not permissible in law and the plaintiffs have no locus standi to question the contract between defendant No. 1 and Qutub Uddin, i.e. the owner and the tenant.
(11) A perusal of the pleadings would show that defendant No. 1 had filed an eviction petition on 28/10/1959 against Qutub Uddinand the plaintiffs. Qutub Uddin being a minor, a guardian ad item was appointed for him. The original tenant was one Mohd. Shafi and Qutub Uddin was one of the heirs of Mohd. Shafi. This litigation was duly contested by the present plaintiffs. An order of eviction was passed on 31/08/1960. Admittedly, the present plaintiffs were relatives of Qutub Uddin. An appeal against the order of eviction was also dismissed. In those matters the plaintiffs were described as unlawful sub-tenants. It seems that after the eviction orders were passed the mother of Qutub Uddin and some other tried to challenge the eviction proceedings without any success. This has led the present plaintiffs to file the suit in forma pauperis, challenging the eviction orders passed against Qutub Uddin and themselves as being without jurisdiction and a nullity.
(12) The first point that arises for consideration is as to what is the right that the plaintiffs claim in this property. I have not been able to find any such averment in the plaint nor has any such averment been brought to my notice. At best by implication the plaintiffs can be regarded as deriving a title from Qutub Uddin. The plaintiffs' case is that there was no valid contract of tenancy between defendant No. 1 and Qutub Uddin as the later was a minor and there could not be any valid contract of sub-tenancy between Qutub Uddinand the plaintiffs as contended by defendant No. 1 in his application for eviction. It is a strange way of asserting their title to the property.The plaintiffs do not say whether they are sub-tenants or tenants or in adverse possession of the shop in suit. The plaintiffs cannot be permitted to deny the title of defendant No. 1 in view of the provisions of Section 116 of the Evidence Act if they claim a title through QutubUddin. As was observed by the Privy Council in Currimbhoy & Co.Ltd. V. L. A. Greet and others, where the possession of a disputed property of both the defendants must be attributed to the possession given to one of the defendants by the plaintiff, both the defendants are barred by section 116 from questioning the plaintiff's title until they have surrendered possession against to him. The plaintiffs are in possession in their own right or through Qutub Uddin. There is no assertion that they are in possession in their own right. The title of defendant No. 1 vis-a-visQutub Uddin cannot, thereforee, be questioned by them. Apart from the above fact the plaintiffs were party to the previous litigation and there is no averment or indication that they ever questioned the title of defendant No. 1 in the proceedings before the Rent Controller.They did not also contest the contract of tenancy pleaded by defendantNo. 1 between him and Qutub Uddin. Any eviction order againstQutub Uddin would be binding on all occupants including the plaintiffs, as was observed by the Supreme Court in Messrs. Importers and . V. Pheroze Framroze Taraporewala and others : 4SCR226 (5)and in Shri Jagadguru GurushiddaswamiGuru Gangadharswami Murusavirmath V. The Dekeshina Maha-rashtra Digamber Jain Sabha, : 1SCR235 , (6).
(13) It is admitted by the plaintiffs in paragraph Ii of the plaint that the appeal against the eviction order was ultimately compromised byvirtue of which 2i years were given to the occupants to vacatethe shop. The plaintiffs were, admittedly, parties to these proceedings and took advantage of this compromise entered on 12/05/1961. They cannot now in equity be allowed to resile from thatcompromise and start proceedings to prevent eviction. In Sunderbhaiand another V. Devaji Shankar Despande, : AIR1954SC82 he rule of estoppel and res-judicata was applied in such circumstances. Similarly, in Sailendra Narayan Bhanja Deo V. The State ofOrissa, : 1SCR72 it was held that a judgment byconsent or default is as effective an estoppel between the partiesas a judgment whereby the court exercises its mind on a contestedcase. To my mind the rule is fully attracted in the facts of the present case.
(14) Mr. Sabir Hussain the learned counsel for the plaintiffs/applicantscontends that the plaintiffs claim adverse posession from 1958inasmuch as there was no valid contract of tenancy between defendantNo. 1 and Qutub Uddin and, admittedly, the plaintiffs were in possession. The argument has merely to be stated to be rejected. ' there is no averment in the plaint nor has my attention been invited to anyact of the plaintiffs claiming independent title by way of adversepossession. No particulars were given as to when title adverse todefendant No. 1 was asserted and how it was asserted. In thisview of the matter I hold .that the petition of plaint does not disclose any subsisting cause of action.
(15) I, thereforee, dismiss the pauper application under clause (d) of rule 5 of Order 33 Civil Procedure Code .
(16) With regard to the petition of plaint I extend the time for makinggood the deficit in court-fees by two weeks. If the deficit in court-fees is not made up, the plaint of Suit No. 302 of 1971 shall standrejected under Order 7 rule Ii Civil Procedure Code .
(17) In the circumstances of the case and as, admittedly, the plaintiffsare paupers, I make no order as to costs.