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Dau Lal Vs. Khang Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. 285 of 1956
Judge
Reported inAIR1962Raj157
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 115, 148 and 149 - Order 7, Rule 11 - Order 33, Rules 7, 8, 15 and 15(2); Rajasthan Code of Civil Procedure (CPC)
AppellantDau Lal
RespondentKhang Singh
Appellant Advocate Hasti Mal, Adv.
Respondent Advocate B.N. Chanda, Adv.
Cases ReferredStuart Skinner v. William Order
Excerpt:
- - rule 15 runs -an order refusing to allow the applicant for 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; no conflict can arise by the application of order 7 as well as order 33 because they shall apply at different stages and not simultaneously......technically it would not be possible for an ordinary suit to be converted into a pauper suit and a paupersuit into an ordinary suit. for according to the strict wordings of the code an ordinary suit is to commence with a plaint under order 7 and a pauper suit with a pauper application under order 33, rule 15 of the latter envisages the filing of a fresh plaint jn case the pauper application is rejected under rule 5 or rule 7. all the high courts have taken the view that a suit commenced as an ordinary suit can be converted into a pauper suit and a pauper application can be converted into an ordinary suit without filing a fresh suit and the pauper application in the latter case will be deemed to be a plaint instituted on the date of filing the pauper application. no conflict can arise by.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a revision application by one Paulal against an order of the Senior Civil Judge, Jodhpur, dated 22-8-56. The application has been contested on behalf of Khang Singh.

2. The facts which have given rise to this application are these. Paulal instituted a suit as a pauper against Khang Singh for the recovery of a sum of Rs. 10234-4-3 on 27-1-55. On 1-8-56 the court passed an order refusing to allow him to sue as a pauper and directed him to pay court-fee by 22-8-56. The applicant did not pay the court-fee but presented an application on 22-8-56 requesting the court to extend the time for payment of court-fee by one month. Two grounds were given In this application. One was that the applicant had not been able to procure sufficient money to cover the court-fee and the other was that he wanted to file a revision application against the order of the court dated 1-8-56 dispaupering him. The application purported to be under Section 148 C. P. C. On this application the court passed the following order : -

'Learned counsel for the applicant has filed an application under Section 148 C. p. C. But I cannot grant further lime for filing the court-fee. The application is rejected. This case should be treated as having been disposed of'.

Against the above order the present revision application has been filed on the ground that there was refusal on the part of the court to exercise jurisdiction which it had under Section 148 C. P. C.

3. On behalf of the respondent a preliminary objection is taken that the order of the court amounted to a rejection of the plaint and no revision lies against it as it is appealable. In support of the preliminary objection reliance is placed on the following decisions :

In re Ramayamma, AIR 1954 Mad 880; In re Vidyudavalli Thayar, AIR .1959 Mad 14; Badri Nath v. State of Pepsu, AIR 1957 Pepsu 14. On behalf of the applicant reliance was placed on --

Munian v. Kesava, AIR 193.5 Mad 467; In re Subrahmanyam, (S) AIR 1955 Andhra 74 (FB); Narsingh Pas v. Rati Ram, AIR 1956 Hyd 41.

4. Having heard the learned counsel for the parties J am respectfully in agreement with the decision of the Pepsu High Court in AIR 1957 Pepsu 14.

5. Under Order 4, Rule 1, C. P. C. every suit is instituted by presenting a plaint in the form prescri-be.d in Order 7, Rule 1. For a person who is unable to pay court-fee special provision is to be found in Order 33 the heading of which is 'Suits by paupers''. Rule 1 lays down that subject to the provisions of the rules which follow a suit may be instituted by a pauper. Rule 2 provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits : a schedule of any move able or immoveable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it would be signed and verified in the manner prescribed for the signing and verification of pleadings. Rule 7 provides for the allowing or refusing to sue as a pauper after hearing. Rule 8 lays down that Where the application is granted it shall be numbered and registered; and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be required to pay any court-fee. Rule 15 runs --

'An order refusing to allow the applicant for 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'.

6. There was formerly a conflict of opinionas to whether the court had jurisdiction to granttime to the applicant to pay court-fee after hisapplication to sue as a pauper was rejected. Nowall the High Courts are agreed that the court hassuch power provided the order granting time isincorporated in the order rejecting the applicarlion for leave to sue as a pauper. The groundson which they have arrived at this conclusion arehowever conflicting.

7. One view is that an application to sue as a pauper is a composite document consisting of an unstamped plaint and an application for permission to sue in forma pauperis. Jf 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, and in such a case the suit shall be deemed to have been instituted on the date of the presentation of the application. This view was taken by a Division Bench of the Orissa High Court in Jinatun Nisa Bibi v. Idrakum Nisa, AIR 1950 Orissa 183.

8. The other view is that the application for leave to sue in forma pauperis cannot be regarded as a composite document. This view was taken in Chunna Mal v. Bhagwant Kishore, AIR 1936 All 584 (FB). This case was reconsidered by another Full Bench of the same High Court in Devendra Kumar v. Raghuraj Bharti, (S) AIR 1955 All 154 (FB) and the same view was adhered to. It was however recognised by the learned Judges who decided that case that it was also possible to regard the application for leave to sue in forma pauperis as a composite document and that regarding it as such was a simpler view. The only difficulty in taking this view in their opinion was that if the petition is deemed to be an unstamped plaint with a prayer to file it without payment of court-fee then Order 7 of the Code would also apply and Orders 7 and 83 are not in all respects similar. If I may say so respectfully no such difficulty can arise in actual practice. In construing the Code of Civil Procedure two things have to be borne in mind namely that the Code is not exhaustive and that it is mostly a Code of procedure, the procedural part of which cannot be interpreted, too technically. If one were to interpret the provisions of the Code of Civil Procedure and of the Limitation Act too technically it would not be possible for an ordinary suit to be converted into a pauper suit and a paupersuit into an ordinary suit. For according to the strict wordings of the Code an ordinary suit is to commence with a plaint under Order 7 and a pauper suit with a pauper application under Order 33, Rule 15 of the latter envisages the filing of a fresh plaint jn case the pauper application is rejected under Rule 5 or Rule 7. All the High Courts have taken the view that a suit commenced as an ordinary suit can be converted into a pauper suit and a pauper application can be converted into an ordinary suit without filing a fresh suit and the pauper application in the latter case will be deemed to be a plaint instituted on the date of filing the pauper application. No conflict can arise by the application of Order 7 as well as Order 33 because they shall apply at different stages and not simultaneously. So long as proceedings for leave to sue as a pauper are pending Order 33 would apply. On the termination of those proceedings Order 7 would apply.

9. The leading case on the subject is the Privy Council decision in Stuart Skinner v. William Order 6 Ind App ,126 (PC). This was a case under the old C. P. C. which did not contain any provision corresponding to Section 149 of the present Code. Their Lordships of the Judicial Committee after, considering the provisions of the Code held:

'The intention of the statute evidently was that unless the petition was rejected, as it contained all the materials of the plaint, it should operate as a plaint without the necessity of filing a new one.....Is there anything in the Act which requires that in such a state of things the petition of plaint shall he rejected altogether and the plaintiff be compelled to commence de novo? 'Their Lordships do not see their way to the middle course followed by the Court in holding that the petition was converted into a plaint from the date of the payment of the fees. To be logical they should have rejected it altogether. The petition of plaint was placed upon the file and numbered... and this is the plaint that is allowed to go on The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it'.

10. Relying on the above dictum it has been held by the several High Courts that the application, to sue in forma pauperis is a composite document consisting of an unstamped plaint and an. application for permission to sue in forma pauperis. 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 fee, and in such a case the suit shall be deemed to have been instituted on the date of presentation of the application.

11. I have mentioned above that all the High Courts are now agreed that while rejecting the application for leave to sue as a pauper the court can grant time to the applicant to pay court-fee and on such payment the pauper application is treated as a plaint instituted on the date of the presentation of the pauper application. Further all the High Courts are agreed that an ordinary Suit commenced by the institution of a plaint can be converted into a pauper suit by the plaintiff presenting an application praying for such permission, without filing an application in accordance With Rule 2 containing all the particulars required to be inserted in a plaint. The case of 6 Ind App 126 (PC) was a case in which during the pendency of the pauper application court-fees were paid and suit was converted into an ordinary suit. There can thus be no doubt that whether a pauper application is treated as a composite document consisting of an unstamped plaint and an application for permission to sue as a pauper on the date of its institution or not it is convertible into a plaint without filing a fresh suit as contemplated under Order 33, Rule 15. The Rajasthan High Court has amended Rule 15 of Order 33 as follows:

(a) Rule 15 shall be renumbered as Rule 15(1) (b) The following shall be added as Rule 15(2):

'15(2) Nothing in Sub-rule (1) shall prevent the Court while Refecting an apppliciation under Rule 5 or refusing an application under Rule 7 from granting time to the applicant to pay the requisite court-fee within a time to be fixed by the Court; and upon such payment tthe suit shall be deemed to have been instituted on the date on which the application was presented''.

The addition of the above sub-rule has not in any way changed the law. It has only made explicit what was already implicit. As has been mentioned above when the court refuses an application for permission to sue as a pauper and allow the application under Section 149 to pay the court-fee within a certain period of time, on payment of the court-fee the application operates as a plaint from the date of its institution and not from the date of payment of court-fee. Once it is conceded that under Section 149 time can be given to such an applicant to pay .court-fee then such a case cannot come within the ambit of Order 33 Rule 15, but the application must operate as a plaint not from the date of payment of court-fee, but from the date of its institution. This appears to be inhe-rent in the provision of Section 149 which provides:

''.Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees 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 lee had been paid in the first instance'. (underlining (here into ' ) is mine).

12. The document must be pending in the court and it must be pending as a document of a nature upon which court-fee is payable, under the law. Now if court-fee is to be paid on the document as if it were a plaint then it stands to leason that on the date on which the court passes an order granting June to the dispaupered applicant to pay court-fee it treats the pauper application as a plaint. From 'that date therefore there is a plaint in the suit which can only be dealt with under Order 7 since Order 33 ceases to apply from the date of the dismissal of the application for leave to sue as a pauper.

13. This aspect of the matter was not taken into consideration in the cases relied upon on behalf of the applicant. Munian's case, AIR 1955 Mad 467 is based on the ground that there is no plaint till the pauper application is rejected under Order 33 Rule 8, and- that unless full court-fee is paid within the time allowed by the court the application is not converted into a plaint. The decision of the Andhra High Court in Subrah-manyam's case, (S) AIR 1955 Andhra 74 (FB) is grounded on the wordings of Pule 11 as amended by the Madras High Court which 'ay down that .when the plaintiff is dispaupere,d the court may order the plaintiff to pay requisite court-fee within a (time to be fixed by it and in default dismiss the suit. It was held that the rule did not use the wor.ds ''reject the plaint', but used the words 'dismiss the suit' and that whereas the rejection of a plaint takes away the basis of the suit as if no suit was filed, in case of a dismissal the existence of suit is recognised and its termination is indicated. The 'earned Judges were of the opinion that the use of 4he words 'dismiss the suit' was deliberate and that it was not intended that the dismissal of the suit under the amended Rule 11 should be treated as a rejection of the plaint. The ruling can only apply to the High Courts which have adopted the Madras amendment of Rule 11. In AIR 1956 Hyd 41 the reasoning given was that Order 7 can only apply to suits which are commenced as ordinary suits and not to those which are commenced under Order 33 as a pauper application.

14. In the P'epsu case, AIR 1957 Pepsu 14 it was felt that there was some difficulty in applying Older 7 Rule 11 to the rejection of a plaint of this nature inasmuch as Rule ll(c) of Order 7 speaks of an insufficiently stamped plaint. To my mind a plaint which is wholly unstamped is also an insufficienly stamped plaint. In this connection Section 149 C. P. C. may be referred to which authorises the court to allow a plaintiff to pay cour.t-fee on a wholly unstamped plaint. It may also be pointed out that a pauper application is not an unstamped application altogether. It bears a court-fee stamp of -/8/-. In this connection the reasoning given in Rarnayamma's case, AIR 1954 Mad 880 may be referred to.

15. I accordingly hold that the order passed by the learned Civil Judge amounted to an order rejecting the plaint under Order 7 Rule 11 which was appealable as a decree, as defined in Sectio 2(2) C. P. C. No revision consequently lies against that order,

16 On behalf of the applicant it was pointed out that hardship may be caused by talcing the above view as a plaintiff who asks for leave to sue as a pauper and the leave is refused may not be able to pay court-fee within the time allowed by the court and he would be prevented from challenging the order dispaupering him without payment of full court-fee on the memo of appeal which he may not be in a position to pay. As was pointed out in Rarnayamma's case, AIR 1954 Mad 880 the proper remedy available to such a plaintiff is to file a revision application against the order dispaupering him before his plaint is rejected and obtain a stay order from the High 'Court so that his plaint is not rejected, before the decision of the revision application.

17. Another argument addressed on behalf of the applicant on the preliminary objection was that no order was passed by the court rejecting the plaint. Although the court did not say expressly in its order dated 22-8-56 that it was rejecting the plaint the order undoubtedly amounts to an order rejecting the plaint. The application for leave to sue as a pauper was rejected. On 1-8-56 and time was granted to the applicant to pay court-fee by .22-8-56. For reasons given by me above from 1-8-56 what was pending was only an unstamped plaint. The order of the court that the case will be treated as having been disposed of put an end to that pending plaint. In other words the plaint was rejected by that order.

18. An application has been moved on behalf of Dau Lal for permission to convert the revision application into an appeal on payment of court-fee. Mr. B. N. Chanda contends that as the valuation of the suit is over Rs. 10,000/- suchpermission can only be granted by a DivisionBench. Mr. Hasti Mal argues that necessary permission can be granted by the Bench seized ofthe civil revision. AS the matter is not free fromdoubt the application of Dau Lal for permissionto convert the revision application into an appealshould be listed for hearing before a DivisionBench. The amount of court-fees payable on thememo of appeal may also be determined, by theDivision Bench in case the necessary permission isgranted as there is conflict of opinion as to theamount of court-fees payable on the memo ofappeal in such a case. The learned counsel forthe parties have notice of this order and theyshall be prepared to address arguments on boththe points before the Division Bench.


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