PETITIONER: JUGAL KISHORE Vs. RESPONDENT: DHANNO DEVI (DEAD) BY L.RS. DATE OF JUDGMENT13/08/1973 BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. ALAGIRISWAMI, A. CITATION: 1973 AIR 2508 1974 SCR (1) 360 1973 SCC (2) 567 ACT: Civil Procedure Code., Order 33, Rule 2 and 3, Order 7 and 8--Sec. 149 Civil Procedure Code-Pauper application subsequently with drawn-Enlargment of time by Court for payment of court fee-Subsequent payment of court fee relates back to the presentation of pauper application and the suit is deemed to be presented from the date of the pauper application. HEADNOTE: The respondent, on January 1948, presented on application under Order 33, Rule 2 and 3 of the C.P.C. for permission to sue as a pauper praying for the relief of possession of a house to which she had an undisputed title. On 26-2-1949, the plaintiffs pleader moved the Court for treating the pauper application as a plaint and for giving three months time for the payment of court fee. On default by the respondent, the court dismissed the suit but restored the same after the plaintiff on November 12, 1949, paid the court fee and the costs of the defendant. The appellant contended that the application to sue as pauper being dismissed on January 18, 1949, there was no proceeding p- ending before the court thereafter and, therefore, the restoration of the proceeding and the payment of Court fee were without any authority_of law and hence the suit was barred by limitation. Assuming, it was contended that the Court had authority to treat the application to sue as a pauper a,; a plaint, the application had been converted into a plaint on November 12, 1949 and on that date, the suit would be barred by time. After losing in trial court and the High Court, the appellant agitated the matter in the Supreme Court. Dismissing the appeal, HELD:(1) Since the suit under section 26 of the C.P.C. may be instituted not merely by presentation of a plaint but also in such manner as may be prescribed, the presentation of the application by pauper u/s 33 would amount to institution of the suit. [3-63E-F] Vijay Protap Singh v. Dukh Maran Natli Singlz and Another, [1962] 2 Suppl.. S.C.R. 675, relied upon. (2)A suit by a pauper or a person claiming to be a pauper must be regarded as instituted on the dale of the presentation of the, application for permission to sue in forma pauperis. [364E-F] (3) Where the application is granted under Order33 Rule 7 and 8, the application is regarded as the plaint from the date ofits presentation, where before the final disposal of the application to sue asa pauper, the plaintiff offers to pay the court fee. treating the application asplaint, or the Court agreeing to treat it a, a plaint enlarges the time for the payment of the court fee, the application must' be regarded as a plaint instituted on the date when the application was presented. [364F-H], Stuart Skinner v. William Orde, 2 Allahabad, 241 (P.C.) Devendar KumarBharti V. Mahanta Raghttrai Bharti, A.I.R. 1955 Allahabad, 154, (F.D.), cited with approval. (4)In the present case, the actual order passed by the Court on July 18, 1949 was not an order rejecting the plaint but rejecting the application to sue is a pauper. The said order had become otiose since the respondent did not want to Proceed as a nauper. There was, in fact, no rejection of the plaint. U/s. 149 C.P.C.. the Court can enlarge the time for the pavment of the court fee and the effect of the payment is as if. the court fee is paid on the date of the presentation of the plaint. The suit must, therefore be regarded as filed on January 2. 1949 and was within limitation. [366D-F] 361 JUDGMENT:
CIVIL APPEAL No. 1326 of 1967 : Appeal by special leave
under article 136 of the Constitution of India from the
judgment and decree dated the 31-3-1963: of the Allahabad
High Court in First Appeal No. 92 of 1955.
S.T. Desai, M. Natesan, A.T.M. Sampath and E.C. Agarwala
for the appellant.
M.C. Cliagla, Lalit Kumar Gupta and A.-G. Ratnaparkhi, for
the respondent No. 1 (a).
The Judgment of the Court was delivered by
PALEKAR, J. The appellant is the son and legal
representative of the original defendants to the suit,
Kedarnath and Chanda Devi. The respondents are the legal
representatives of the deceased plaintiff, Dhanno Devi.
On January 2, 1948 Bhanno Devi presented an application
under Order 33, Rules 2 and 3 of the Code of Civil Procedure
for permission to sue as a pauper in the Court of the First
Civil Judge, Kanpur. TIC plaint part of the application
prayed for the relief of possession of a house situated in
the city of Kanpur on the allegation that the house was of
the ownership of one Budhu Lal-her father. Budhu Lai died
in 1918 and on his death his widow Jumma Devi inherited the
property. On Jumna Devi’s death on December 26, 1935 Dhanno
Devi, as the daughter, was entitled to succeed to the
property. The defendants were in possession and were
falsely refusing to yield up their possession to Dhanno Devi
and hence she was required to file the suit. A very large
amount had to be paid as court fee which Dhanno Devi was not
in a position to pay and hence she prayed that permission
may be given to her to sue as a pauper. The last date for
filing the suit was December 26, 1947 but as the courts were
closed for X’ mas vacation the application had been
presented to the court on January 2, 1948 i.e. on the re-
opening of the court and thus it was claimed the suit was
within limitation.
The defendants disputed the plaintiff DhannoDevi’s
titlecontending that she was not the daughter of Budhu Lal.
They alsocontend ed that the suit was barred by
limitation.
The Trial Court negatived the contentions of the defendants
and decreed the suit. That decree was confirmed by the High
Court of Allahabad by its Judgment dated March 31, 1965 in
First Appeal No. 292/1955. The present appeal by special
leave is directed against the judgment of the High Court.
Since both the courts held that Dhanno Devi had title to the
house and the defendants had none, learned counsel for the
appellant did not, rightly, press the contention with regard
to Dhanno Devi’s title to the property in suit. The only
point pressed before us was with regard to limitation.
362
The point of limitation arises in this way. As already
stated the suit had been instituted on January 2, 1948 by an
application for permission to sue as a pauper under Order 33
C.P.C. If that date is regarded as the date on which the
suit was properly instituted then there is no dispute that
the plaintiff’s suit is in time. But what happened was that
on February 26, 1949, before the question of pauperism was
formally decided by the court, the plaintiff’s pleader asked
for three months time to pay the court fee on the
application by treating it as a plaint. The court granted
this prayer and adjourned the case from time to time to
enable her to pay the court fee. The last date so fixed was
July 15, 1949. On that day the plaintiff did not appear,
nor did she pay the court fee and consequently on July 18,
1949 the following Order was passed by the court
“Court fee still unpaid. The applicant did
not press his application to sue in forma
pauperis but offered to pay court fee. He did
not do so till now.
ORDER
The application to sue as a pauper is
dismissed with costs.”
On August 13, 1949 the plaintiff filed an application for
restoration of the case under Order 9 Rule 9 C.P.C. After
hearing the defendants the court passed an order that the
plaintiff should first pay the court fee and the costs of
the defendants whereupon the application for restoration
would be considered. Ace ordingly on November 12, 1949 the
plaintiff paid the court fee and the defendant’s costs. By
his order dated April 15, 1950 the learned Judge held that
the plaintiff had sufficient cause for not paying the court
fee in time and restored the proceeding to the file after
setting. aside the order referred to above.
When the court fee was paid on the application i.e. on
November 12, 1949, the suit would have been barred by time
because, as already stated, the last date for filing the
suit was January 2, 1948. It is contended on behalf of the
appellant that on the application to sue as a pauper being
dismissed on January 18, 1949, there was no proceeding
pending before the court thereafter and, therefore, the
restoration of the Proceeding and the payment of court fee
were without authority of law and hence the suit was barred
by limitation. Assuming, it was contended, that the court
had authority to treat the application to sue as a pauper as
a plaint, the application had been converted into a plaint
on November 12, 1949 and on that date the suit would be
barred by time.
Section 26 of the Civil Procedure Code provides how a suit
is to be instituted in a Civil Court. Every suit, as stated
in that section, &hall be instituted by the presentation of
a plaint or in such other manner as may be prescribed. On
January 2, 1948 the plaintiff had presented an application
for permission to sue under Order 33 C.P.C. It was not a
suit instituted by the presentation of a plaint. But the
suit was obviously instituted in a manner Prescribed by
Order 33. Rule 1 of Order 33 provides-
363
“Subject to the following provisions any suit may be
instituted by a pauper”
The manner of such institution is provided in rules 2 and 3
which are as follows
“2. Every application for permission to sue
as a pauper shall contain the particulars
required in regard to plaints in suits; a
schedule of any movable or immovable property
belonging to the applicant, with the estimated
value thereof, shall be annexed thereto; and
it shall be signed and verified in the manner
prescribed for the signing and verification of
pleadings.”
3.Notwithstanding anything contained in
these rules, the application shall be
presented to the Court by the applicant in
person, unless he is exempted from appearing
in Court, in which case the application may be
presented by an authorised agent who can
answer all material questions relating to the
application, and who may be examined in the
same manner as the party represented by him
might have been examined had such party
attended in persons
In short, according to rules 1, 2 and 3 a suit by a pauper
is instituted when the application for permission to sue as
a pauper containing the necessary particulars of a plaint is
presented to the Court by the applicant in person or by his
authorized agent. In the present case it is not disputed
that this was done on January 2, 1948.
There has been a conflict of judicial opinion on the
question whether a suit could be held to have been
instituted when a petition to sue as a pauper was presented.
One view is that until permission is granted under rule 7 of
Order 33 there is no suit instituted. The other view is
that since a suit under section 26 may be instituted not
merely by the presentation of a plaint but also in such
manner as may be prescribed the presentation of the
application by the pauper under Order 33 would amount to
institution of the suit. This latter view is accepted by
this Court in Vijay Pratap Singh v. Dukh Haran Nath Singh
and Another.(1). In that case Vijay Pratap Singh filed a
petition for leave to sue in forma pauperis for the
declaration of his title to Ayodhya Raj. He claimed that on
the death of the widows of Maharaja Man Singh, the estate
devolved on his grand father, Ganga Dutt, who died in 1942.
The estate was ‘thus ancestral property in the hands of
Ramjivan, the father of the plaintiff, who thus got interest
in the same by reason of his birth. Ramjivan was made one
of the defendants to the suit. The plaintiff’s petition to
sue as a pauper was rejected by the Subordinate Judge under
Order 33 rule 5(d) on the ground that the allegations in the
application did not show a cause of action. It is to be
noted that the court had not decided the issue about his
pauperism because that could be done only under Rule 7(3)
after trial of the issue under rule 6. On such rejection
Ramjivan-the father applied to the court to be transposed as
the petitioner but that application was also rejected. This
court held that the rejection of both these applications was
improper because, in the first case, the
(1)[1962] (2) Suppl, S, C. R. 675.
364
court had to see under rule 5 (d) whether the, allegations
made in the petition showed a cause of action and the court
had no power to enter upon a trial of the issues affecting
the merits of the claim at that stage. As regards
Ramjivan’s application for transposition under Order 1 Rule
10 it was held that the application was wrongly rejected
because such an application. could have been legally
entertained by the court because the suit had already been
instituted. It was pointed out that an application to sue
in forma pauperis is but a method prescribed by the Code for
institution of a suit without payment of court fee and,
therefore, the suit commences from the moment the
application for permission to sue in forma pauperis, as
required by Order 33 of the Code, is presented. Dealing
with the point the court observed at page 685.
“We are also of the view that the High Court
was in error in holding that by an application
to sue in forma pauperis, the applicant prays
for relief personal to himself. An appli-
cation to sue in forma pauperis, is but a
method prescribed by the Code for institution
of a suit by a pauper without payment of fee
prescribed by the Court Fees Act, If the claim
made by the applicant that he is a pauper is
not established the application may fail. But
there is nothing personal in such an
application. The suit commences from the
moment an application for permission to sue in
forma pauperis as required by 0.33 of the Code
of Civil procedure is presented, and O. 1, r.
10, of the Code of Civil Procedure would be as
much applicable in such a suit as in a suit in
which court fee had been duly paid.”
This Court has, therefore, finally resolved the conflict by
declaring that the suit by a pauper or a person claiming to
be a pauper must be regarded as instituted on the date of
the presentation of the application for- permission to sue
in forma pauperis as required by rules 2 and 3 of Order 33
Civil Procedure Code.
As regards limitation for such a suit instituted by a
pauper. the provisions of rule 8 of Order 33 are relevant.
That rule provides
“Where the application is granted, it shall be
numbered and registered, and shall be deemed
to be 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 liable to pay any
court-fee (other than fees payable for service
of process) in respect of any petition,
appointment of a pleader or other proceeding
connected with the suit.”
In view of this provision there is no dispute that when
permission to sue as a pauper is granted by the court under
rule 7 of that Order, the petition or application must be
regarded as a plaint filed on the day when, the application
was presented to the court.
There is, however, divergence of opinion with regard to the
legal position arising out of an order passed under rule
7(3) refusing to
3 6 5
allow the applicant to sue as a pauper, One view is that on
such a refusal, the suit, which was already ‘instituted.
does not come to an end, because, the application by which
the suit was commenced is a composite document comprising a
plaint and a prayer to sue in forma pauperis and, therefore,
when the latter alone is refused, the suit does not come
automatically to an end. The proceedings can still continue
if court fee is paid on the application treated as a plaint,
in which case the date for limitation would be the date on
which the application was presented to the court. See, for
example, Bhanu v. Dalmia and Co.(1) The other view is that
when the application to sue as a pauper is refused, that
puts an end to the application, which is not a composite
document, and the court has no power thereafter to permit
the defunct application to be revived as a plaint by
accepting court fee. See, for example Chunna Mal v.
Bhagwant Kishore.(2). How far this view can be sustained
after this Court’s decision in Vijay Pratap Singh v. Dukh
Haran Nath Singh, referred to above, is a matter which we
are not called upon to decide in the present appeal.
Nevertheless, it must be noted that there is almost a
concensus of opinion that where, before the formal disposal
of the application to sue as a pauper, the plaintiff offers
to pay the court fee treating the application as his plaint,
or, the court, agreeing to treat it as a plaint, enlarges
the time for payment of the court fee, the application must
be regarded as a plaint instituted on the day when the
application was presented. See : Stuart Skinner v. William
Orde(3), Devender Kumar Pharti, v. Mahanta Raghuraj
Bharti(4). This proceeds on the view that the court has
power to permit the application to sue in forma pauperis to
be treated as plaint and to extend the time, if necessary,
for payment of court fee on the document, in view of the
fact that it contains all the necessary particulars for the
purpose of a plaint.
In the appeal before us the plaintiff had offered to pay
court fee on the application regarded as a plaint and the
court had agreed that this may be done. There is nothing in
Order 33 Civil Procedure Code which prevents an applicant
from telling the court that though he had prayed for
permission to sue in forma pauperis, he is now in possession
of funds and would like to pay the Court fee on the
application treating it as a plaint. Thereby, in effect the
applicant withdraws his prayer for permission to sue as a
pauper and requests the court not to apply the provisions of
Order 33 to him. If the court agrees, and, generally in
practice the court does agree, to treat the application as
a plaint, in view of the fact that it contains all the
necessary particulars required in a plaint, there could be
no objection to the suit being treated as one instituted by,
the presentation of a plaint. In the present case, as
already stated. even before, the issue regarding pauperism
came for trial and decision the plaintiff offered to pay the
requisite fee on the application treating it as a plaint and
the court agreed to that course. The plaintiff prayed for
three months time to Pay the court fee by her application
dated February 26, 1949 and the court acceded to that
request and adjourned the proceedings from time to time, on
several
(1) A.I.R. 1959 M. P. 169.
(2) A.I.R. 1936, Allahabad, 584.
(3) 2 Allahabad, 241 (P. C.)
(4) A. I.R. 1955 Allahabad, 154 (F. B.)
366
occasions. The plaintiff was finally granted time to pay
the court fee until July 15, 1949 but unfortunately the
plaintiff did not attend the court on that day, nor was the
court fee paid. Hence the court passed the Order dated July
18, 1949 expressly saying that the application to sue as a
pauper is dismissed with costs.
Now the above Order dismissing the application to sue as a
pauper was, to say the least, otiose. The plaintiff had
already withdrawn his prayer for permission to sue as a
pauper and the court had agreed to the withdrawal of that
prayer and to treat his application as a plaint. From that
time onward the suit which had been properly instituted
could only proceed on the basis that the suit was as good as
a suit filed on a plaint. And in such a case it was open to
the court under section 149 C.P.C. to order the plaintiff to
pay the deficit court fee and enlarge the period to pay such
court fee. If the court fee is not paid, the only order
that the court could have passed was to reject the. plaint
under Order 7 rule 1 1 (c) C.P.C. The rejection of a plaint
is a decree and appealable as. such. The question,
therefore, is whether in this case there was any rejection
of the plaint for non-payment of the deficit court fee,.
The actual order passed by the court on July 18, 1949 does
not show that the plaint had been rejected. What the court
did was to reject the plaintiff’s application to sue as a
pauper which was a redundant order because the prayer to sue
as a pauper had been withdrawn much earlier and the
application to sue as a pauper, as such, did not survive for
being dismissed on July 18, 1949. In law, therefore, there
was no rejection of the plaint in the suit and, therefore,
the suit continued to remain on the file. While it
continued on the file the plaintiff applied to the court and
paid the court fee ,as ordered. On the acceptance of the
court fee by the court, the document, namely, the plaint
would by virtue of Section 149 C.P.C., have the same force
and effect as if such fee had been paid in the first
instance viz. on the date it was presented to the court i.e.
January 2, 1948. In our view therefore, the suit must be
regarded as properly filed on January 2, 1948; and that
being admittedly the last date on which the suit could have
been legally filed to avoid the bar of limitation, the plea
of limitation made on behalf of the defendants must fail.
In the result the appeal fails and is dismissed with costs.
S.B.W. Appeal dismissed.
367