1. This Civil Revision Petition, is brought against the order of the Subordinate Judge of Ramnad at Madura, dismissing an application for leave to file a suit in forma pauperis. The learned Judge found that the application was not bona fide, that the applicant had sufficient property, and that shortly before he had filed the application he had disposed of other properties. With regard to one transaction the learned Judge says:
The petitioner wants the Court to believe that this was an honest transaction and was not the one intended to defraud the Government and to escape payment of court-fee.... The othi has been executed just an the eve of filing this petition just for the purpose of enabling him to file this application.
2. I take that to be a finding that that transaction was not put through bona fide but was put through to enable the applicant to pretend that he was a pauper when in fact he knew he was not. In the result the petition was dismissed with costs. No application appears to have been made for a time to be fixed in. which to present the plaint with a proper court-fee stamp. Such an application was necessary because the application to sue in forma pauperis was filed on the very last day of limitation. The plaintiff could not therefore simply present a plaint thereafter but, for limitation purposes, had to relate the plaint to the application to sue as a pauper. In Stuart Skinner v. William Orde (1878) 2 All. 241, (a decision of the Privy Council made when the Civil Procedure rules were somewhat different), it was decided that if an application to sue in forma pauperis is filed and pending disposal of that application the plaintiff by paying the amount of stamp-fees into Court admits he is no longer desirous to sue as a pauper the plaint filed, with the application will relate back to the date when the application was filed, always (assuming the application to sue in forma pauperis was made bona fide. Now it is urged before me that a Court though not asked to give time is compelled to give time by order 7, Rule 11(c), Civil P.C. That rule provides:
The plaint shall be rejected in the following cases...(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so.
3. It is said that hero in fact the plaintiff has filed a plaint without any stamp, that is on a paper insufficiently stamped. In such a case the plaintiff has, it is urged, time in which to supply the requisite stamp within a time to be fixed by Court. Therefore, it is said, the Court must fix a time. But in my opinion applications for leave to sue as a pauper are not governed by Order 7, Rule 11, Civil P.C. Until the application is granted the suit cannot be regarded as instituted. If the application is refused it is true that under Section 149, Civil P.C. the Court may allow the applicant to file the plaint properly stamped within a time to be fixed. If the plaintiff then files the plaint within that time it may well be that the plaint would be deemed to have been filed when the application to sue in forma pauperis was filed. But although the Court, after dismissing the pauper application, may on application made grant a time in which to file a properly stamped plaint, it is not in my opinion compelled to do so. That is, the-matter does not fall under Order 7, Rule 11(c).
4. It is said however that here the Court-has not exercised its discretion under Section 149, Civil P.C. at all. It seems to me that the answer to that is that before the Court can exercise a discretion whether to grant or refuse an application, an application must be made to it. That is to say, either the Court is bound by some rule or order or statute to do a thing, whether applied to or not, or it is not. If Order 7, Rule 11, applies here, the Court would be compelled to fix a time. Order 7, Rule 11, does not however, in my opinion, apply. Therefore the Court is not compelled to give a time, but the Court may give a time. Whether the Court will give a time or will consider the question of giving a time will depend upon whether it is asked to give a time. Here no application was made to the Court to grant a time in which to file the plaint. That being so the Court had not before it the question of giving time, and accordingly it could not exercise its discretion upon the matter. That results in this the plaintiff not having applied for time on that day would have to apply for a time on a later day if the Court's attention was to be drawn on the question of giving a time. No such application was ever made. The result is that the Court has never considered this matter at all. I do not see how any revision lies when the Court has done nothing wrong in failing to deal with a matter that was never raised before it. Further it would seem that in this case the learned Judge who heard the witnesses came to the conclusion that the application to sue in forma pauperis was mala fide. Stuart Skinner v. William Orde (1878) 2 All. 241 makes it clear that in such cases different considerations arise from those that apply where the application is bona fide though dismissed.
5. It was held in Mg Wa Tha v. Abdul Gani Osman (1913) 18 I.C. 518 that where an application to appeal in forma pauperis is made and is dismissed and a regularly stamped appeal is filed after the prescribed period of limitation, then, although an unstamped memorandum of appeal accompanied the petition for leave to appeal in forma pauperis, that regular appeal could not be treated for purposes of limitation, as having been presented on the day on which the application for leave to appeal in forma pauperis was presented, because Section 149, Civil P.C., is inapplicable when there are no proceedings actually before the Court. When the application for leave to appeal in forma pauperis is rejected, the unstamped memorandum of appeal attached to that petition falls to the ground.
6. By parity of reasoning it would follow that when an application for leave to sue is rejected the unstamped plaint falls to the ground and there is therefore no plaint. To save the position it may well be that the plaintiff can ask the Court to keep the plaint on foot by giving a time in which to file a stamped plaint. If a time be given, that would, I think, prevent the plaint (originally filed with the application to sue as a pauper) falling to the ground. It would continue on foot and, as in the case of a plaint presented imperfectly stamped and later properly stamped, the plaint filed with the application to sue as a pauper, when properly stamped, would be treated as filed on the date when the application to sue was filed. But the difficulty here is that the Court was not asked to give time and did not give time. It is true that it is not desirable chat, owing to a slip on the part of an Advocate whereby he fails to ask for something that he should have asked for, a litigant should be debarred from pursuing a claim. But when one finds that the learned Judge who disposed of the matter had arrived at the conclusion that the plaintiff's conduct amounted to a fraud on the Court, I feel that the reason why the learned Judge was not asked to give time was that it was clear that if asked he would have refused to give time.
7. I am accordingly of the opinion that this is not a case fit for revision and the petition is dismissed with costs.