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Sardar Singh Vs. Mehant Bhagwandas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 314 of 72
Judge
Reported in1973(6)WLN768
AppellantSardar Singh
RespondentMehant Bhagwandas
DispositionRevision dismissed
Cases ReferredIn B. Desireddi v. Y. Rama Rao
Excerpt:
.....that on the request of the plaintiff-nonpetitioner time to make up deficiency in the court fee was extended upto 14.1.1972. but on 11-1-72 the plaintiff made an application for amendment of the plaint by introducing certain changes in the cause of action as well as in valuation of the suit and submitted accurst-fee stamp of rs. in connection with filing of an appeal in forma pauperis are different from those of order 33, which deals with the filing of a suit in forma pauperis this distinction has been clearly brought out by the learned judge of the rangoon high court who has taken the view that once the application for grant of leave to appeal as a pauper is dismissed on account of the judgment and decree of the court below not being contrary to law, the memo of appeal filed with the..........aggrieved before me.3. learned counsel for the petitioner has argued that the prayer for suing in forma pauperis having been rejected on 17-11-1971, the trial court had no jurisdiction to treat the application as a plaint and allow its amendment. he has relied upon vertannes v. lawson air 1935 ran 336 and bhairudan and ors. v. ratan lal and anr. ilr 2 (1952) raj 497, and has further urged that the view taken by the learned single judge in daulal v. khang singh 1961 rlw 262 is contrary to bhairudan's case4. it may be pointed out that under order 33, rule 15 civil p.g a sub-rule (2) has been introduced in rajasthan which reads as under:nothing in sub-rule (1) shall prevent the court while rejecting on application under rule 5 or refusing an application under rule 7 from granting time to.....
Judgment:

C.M. Lodha, J.

1. This is a revision petition by the defendant against the order of the Additional District Judge, Dholpur dated 6-4-1972 by which the learned Judge allowed the nonpetitioner's application for amending the plaint.

2. The nonpetitioner filed an application to institute a suit as a pauper. This application was rejected on 17-11-1971 and 15 days' time was granted to the nonpetitioner to file the requisite court fee. It appears that on the request of the plaintiff-nonpetitioner time to make up deficiency in the court fee was extended upto 14.1.1972. But on 11-1-72 the plaintiff made an application for amendment of the plaint by introducing certain changes in the cause of action as well as in valuation of the suit and submitted accurst-fee stamp of Rs. 200/- being the deficit court fee payable on the amended plaint The learned Judge, as already stated above, allowed the amendment of which the piti-tioner is now aggrieved before me.

3. Learned Counsel for the petitioner has argued that the prayer for suing in forma pauperis having been rejected on 17-11-1971, the trial court had no jurisdiction to treat the application as a plaint and allow its amendment. He has relied upon Vertannes v. Lawson AIR 1935 Ran 336 and Bhairudan and Ors. v. Ratan Lal and Anr. ILR 2 (1952) Raj 497, and has further urged that the view taken by the learned Single Judge in Daulal v. Khang Singh 1961 RLW 262 is contrary to Bhairudan's case

4. It may be pointed out that under Order 33, Rule 15 Civil P.G a Sub-rule (2) has been introduced in Rajasthan which reads as under:

Nothing in Sub-rule (1) shall prevent the court while rejecting on application 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 the suit shall be deemed to have been instituted on the date on which the application was presented.

5. Now, therefore, there can be no controversy that according to Order 33, Rule 15 C.P.C as amended in Rajasthan, while rejecting the application to sue in forma-pauperis the court had jurisdiction to grant time to pay the requisite court fee. It is important to note that the application to sue as pauper incorporating all the necessary ingredients of the suit was not rejected and even though the permission to sue in forma pauperis was rejected, the plaint incorporated therein still survived. There is therefore no room for argument, in view of the amended Order 33, Rule 15, that the court became functus officio when it rejected the plaintiff's prayer to sue as pauper.

6. I have looked into Vertannes v. Lawson AIR 1935 Ran 336 and, in my opinion, the aw discussed therein has no bearing on the facts and circumstances of the present case. It was a case of dismissal of an application to file an appeal as a pauper under Order 44, Rule 1 C.P.C It is important to point out that the provisions of Order 44, Civil P.C. in connection with filing of an appeal in forma pauperis are different from those of Order 33, which deals with the filing of a suit in forma pauperis This distinction has been clearly brought out by the learned Judge of the Rangoon High Court who has taken the view that once the application for grant of leave to appeal as a pauper is dismissed on account of the judgment and decree of the court below not being contrary to law, the memo of appeal filed with the application does not survive.

7. Great emphasis has been laid by the learned Counsel for the petitioner on Bhairudan's case IIR (1962) Raj 497 in support of his contention that once the application for grant of lease to file the suit in forma pauperis is rejected nothing is left. A careful reading of Bhairudan's case 1961 RLW 262 would make it crystal clear that in the first instance their Lordships were dealing with a case of second application or for the matter of that a subsequent application for filing the suit in forma pauperis. That apart, the view taken by them in respect of a subsequent application to sue in forma pauperis was that once the application was dismissed, the court thereafter had no jurisdiction to extend time for payment of court fee Under Section 149 CPC. It may be pointed out that in the first place the observations of their Lordships were with reference to an order passed by the court after the application had completely been disposed of. Their Lordships said nothing about the order for grant of time which could be passed while refusing the applicant's prayer to sue in forma pauperis. However, even that point has been set at rest by introduction of Sub-rule (2) in Order 33, Rule 15 CPC in Rajasthan.

8. In Daulal v. Khang Singh 1961 RLW 262 it was observed that if the court fee is to be paid on the document as if it were a plaint then it stands to reason that on the date on which the court passes an order granting time to the dispaupered applicant to pay court-fee, it treats the pauper application as a plaint. In Vijai Pratap v. Dukh Haran Nath (4) it was observed by their Lordships of the Supreme Court that an application to sue in forma pauperis, is but a method, prescribed by the Code for institution of a suit by a pauper without payment of the fee prescribed by the Court Fees Act, and the suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33, of the CPC is presented

9. In B. Desireddi v. Y. Rama Rao (5) it was held that when a pauper application is refused and the court-fee is not paid within time allowed with the result that the pauper application is finally rejected or dismissed, the final order amounts to rejection of the plaint.

10. These rulings support the view that an application to sue as a pauper is to be treated as a plaint without the prescribed court fee. In my opinion the learned trial court did not commit any error of jurisdiction in allowing the nonpetitioner to amend the plaint specially when the application for amendment of the plaint was filed along with the requisite court fee payable on the amended plaint, within the time granted by the court for payment of the prescribed court fee. The amendment has not been called into question on merits and therefore there is no occasion for me to deal with it.

11. The result is that I do not see force in this revision and hereby dismiss it, but in the circumstances of the case I make no order as to costs.


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