JUDGMENT
1. Is the Court bound to grant time for payment of the requisite court-fees while refusing to allow the applicant to sue as an indigent person under R. 7 of O. 23 of the Code of Civil Procedure, 1908 (the ‘Code’ for brief)? If the Court has not granted such time while refusing to the applicant permission to sue as an indigent person, can it not grant such time for payment of the requisite court-fees to him on his making an application for the purpose? If such time is granted by the Court, can the order granting such time be interfered with in exercise of the revisional powers of this Court under S. 115 of the Code? These are the main questions arising in this Civil Revisional Application questioning the correctness of the order passed by the learned Civil Judge (S.D.) at Porbandar on 28th December, 1987 below the Application at Ext. 55 in Civil Miscellaneous Application No. 120, of 1985 granting the respondent herein time to pay the require court-fees on his application after refusing it under R. 7 of O. 33 of the Code.
2. The facts giving rise to this revisional application may be summarised thus: The respondent herein filed one application for permission to sue as an indigent person in the Court of the Civil Judge (S.D.) at Porbandar. His application came to be registered as Civil Miscellaneous Application No. 120 of 1985. It appears that, after hearing the parties, the Court rejected his application and refused him permission to sue as an indigent person. It appears that the Court did not grant time to pay the requisite court-fees while refusing him permission to sue as an indigent person under R. 7 of O. 33 of the Code. The respondent herein thereupon made one application for grant of time for payment of the requisite court-fees payable on the claim made in the suit he intended to file as an indigent person. It was taken on record at Exh. 55 on the record of Civil Miscellaneous. Application No. 120 of 1985. It appears that the petitioner 9 herein filed his reply thereto at Exh. 56 on the 4 record of Civil Miscellaneous Application No. 120 of 1985 and resisted the application at Exh. 55 on the record of the that proceeding on various grounds. After hearing the parties, the learned Civil Judge (S.D.) at Porbandar, by his order passed on 28th December, 1987 below the application Ext. 51 in Civil Miscellaneous Application No. (sic) was pleased to accept the application and to grant time to the respondent herein to pay the requisite court-fees within one month from the date of the order. The petitioner herein has thereupon invoked the revisional jurisdiction of this Court under S. 115 of the Code for questioning the correctness of the order passed by the lower Court.
3. Shri Lakhani for the petitioner has submitted that the Court became functus officio on rejection of the application for permission to sue as an indigent person under R. 7 of O. 33 of the Code, and as such it could not have granted time for payment of the requisite court-fees to the applicant subsequently. According to Shri Lakhani for the petitioner, by the time the respondent herein had made the application for grant of time for payment of the requisite court-fees payable on the suit that he intended to-file as an indigent person, the claim made by him in his intended suit had become barred by the Law of Limitation and it was not open to the Court below to extend the period of limitation in the guise of granting the time for payment of the requisite court-fees. Shri Lakhani has further submitted that the order rejecting the application for permission to sue as an indigent person was passed by the Court below in presence of the learned Advocates for the parties, and as such it was open to the learned Advocate for the respondent herein to apply for time to pay the requisite court-fees when the Court was rejecting his application under R. 7 of O. 33 of the Code. If such time was not prayed for by or on behalf of the present respondent, runs the submission of Shri Lakhani for the petitioner, the Court could not have subsequently granted time as it had not kept the matter alive as an unstamped plaint requiring any further order for its disposal. As against this, Shri Padiwal for the respondent has submitted that it was the bounden duty of the Court to have granted time for payment of the requisite court-fees to the present respondent while rejecting his application under R. 7 of O.33 of the Code and, since the Court had failed in its duty, it was again the bounden duty of the Court to grant time to the respondent herein on his subsequent application for the purpose. Shri Padiwal for the respondent has further submitted that, whatever be the law prior to introduction of R. 15A in O. 33 of the Code by the Code of Civil Procedure (Amendment) Act, 1976 (the ‘Amending Act’ or brief), the Court is now bound to grant time to the applicant for payment of the requisite court-fees while rejecting his application for permission to sue as an indigent person either under R. 5 or under R. 7 of O. 33 of the Code.
4. Prior to the Amending Act, the view of various High Courts on the controversy whether or not courts could grant time for payment of the requisite court-fees while rejecting an application under R. 5 or R. 7 of O.33 of the Code was not unanimous. The Division Bench of the Bombay High Court in its ruling in the case of Mahadev Gopal Savant v. Bhikaji Vishram Chavan reported in AIR 1943 Bom at page 292 has held (at page 296):
“An application under O. 33, R. 2, Civil P.C., for permission to sue as a pauper is required to contain particulars required in regard to plaints in suits. It is to be signed and verified in the manner prescribed for the signing and verification of pleadings by the Code, and is capable of being itself treated as a plaint. If the application is granted and the applicant is allowed to sue as a pauper, then the application becomes a plaint in virtue of the provisions of O. 33, R. 8 and would be numbered and registered. Even before deciding whether to grant the application or not, the Court may, at any time during the pendency of the proceedings, treat the application as a plaint and allow the applicant to pay the requisite court-fees and give up his request to be allowed to sue as a pauper, as in the Privy Council case in 6 I.A. 126 (Skinner v. Orde). Even if the Court decides to reject the application under O. 33, R. 5, or to refuse to allow the applicant to sue as a pauper under O. 33, R. 7, it may treat the application as an unstamped plaint and either before or at the time of passing the order under R. 5 or O. 7, it may in its discretion under S. 149 allow the applicant time to pay the requisite court-fees, and upon such payment within the time allowed, number and register the plaint.”
5. Surprisingly enough, a learned single Judge of that very High Court in its ruling in the case of Vamanrao Lalubhai v. Pranlal Bhagwandas reported in AIR 1944 Bom at page 63 as held :
“Where an application for leave to sue in forma pauperis is refused under O. 33, R. 7(3) the Court cannot under S. 149 allow the applicant to pay the requisite court-fee and treat the application as a plaint.”
6. The Full Bench of the Allahabad High Court in its ruling in the case of Chunna Mal v. Bhagwant Kishore reported in AIR 1936 All at page 584 has held:
“Where an application for permission to sue as a pauper is rejected under O. 33, R. 5, the Court, while rejecting the application can, under S, 149, allow the applicant to pay the requisite court-fee and treat the application as a plaint. If however the Court has refused to allow the applicant to sue as a pauper under O.33, R. 7(3), then the Court while rejecting the application for permission to sue as pauper cannot under S. 149, allow the applicant to pay the requisite court-fee and treat the application as a plaint.
Where the Court rejects an application for permission to sue as a pauper, it cannot, after rejecting the application, by a separate and subsequent order allow the applicant to pay the requisite court-fee under S. 149 and treat the application as a plaint.”
It has been observed by Allsop, J. in that case :
“The Court, having once passed an order refusing to allow an applicant to sue as a pauper, may after the proceedings have been reopened exercise jurisdiction under S. 149.”
7. I do not want to burden this judgment by referring to various other rulings cited at the Bar on the point.
8. By the Amending Act, the legislature has brought on the statute book R. 15A in O. 33 of the Code. It reads :
“Grant of time for payment of court-fee:
Nothing contained in R. 5, R. 7 or R. 15 shall prevent a Court, while rejecting an application under R. 5 or refusing an application under R. 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred to in sub-rule (2) of R. 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.”
It is obvious that this provision is couched in enabling words. The Court is empowered to grant time to pay the requisite court-fees within such time as may be fixed by it, or extended by it from time to time while rejecting an application under R. 5 or refusing an application under R. 7 of O. 33 of the Code. The question is whether or not any bounden duty to do so can be spelt out from this provision.
9. It would be quite proper to look at observations made by Jervies, C.J. in the case of Mac Dougall v. Paterson reported in (1851) 11 Ch 755 at page 773: “When a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority, when the case arises and its exercise is duly applied for by a party interested and having a right to make that application.” Again, “the use of permissive words in such cases”, observed James, L.J. in the case of Re Neath and Brecon Ry. Co., reported in (1874) LR 9 Ch 263 at page 264, “is the usual courtesy of Legislature in dealing with the judicature.” In the case of Shelly v. London County Council reported in (1948) 2 All ER 898 (HL) at page 901 the words “it shall be lawful” were used for the purpose of conferring a new jurisdiction which was not lawful for the authority concerned to exercise till then and, when a case for the exercise of that jurisdiction was found to have been made out, it was held that it would be the duty of the said authority to grant the relief and not to refuse to exercise its authority merely at its discretion.
10. In this connection a reference deserves to be made to the binding ruling of the Supreme Court in the case of Ramji Missar v. State of Bihar reported in AIR 1963 SC at page 1088 : (1963 (2) Cri LJ 173. In para 16 at page 1092 of the reported ruling it has been held :
“Though the word ‘may’ might connote, merely an enbling or permissible power in the sense of the usual phrase “it shall be lawful”, it is also capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a Court or other judicial authority. As observed in Maxwell on Statutes:
“Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they ‘may’, or ‘shall’ , if they think fit, or, ‘shall have power,’ or that ‘it shall be lawful’ for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have -to say the least – a compulsory force.”
The fact that the power is conferred on a Court might militate against the literal interpretation “may” suggested by the respondent.”
11. In view of the aforesaid principles of law emerging from the case law, it is possible to spell out a compellable duty from a provision couched in enabling words. A bounden duty can be inferred or implied in a provision empowering the Court to act in a particular manner in certain circumstances.
12. As aforesaid, R. 15A of the Amending Act is couched in the language which would make it an enabling provision. At first blush it might appear that the Court is given discretion grant time to pay the requisite, court-fees while rejecting an application under R. 5 or refusing an application under R. 7 of O. 33 of the Code. It is now to be seen what the object or the purpose could be behind introducing R. 15A in O. 33 of the Code by the Amending Act. It cannot be gainsaid that, if the application for permission to sue as an indigent person is accepted, the applicant gets an opportunity to fight out his litigation on merits Should the right to fight out his litigation on merits be denied to the applicant whose application is rejected or refused under R. 5 or R. 7 of O. 33 of the Code? The insertion of R. 15A in O. 33 thereof by the Amending Act leaves no room for doubt that the object or the purpose behind it is to allow the unsuccessful applicant in establishing his indigency to fight out his litigation on merits on payment of the requisite court-fees without any other con strain or reservation. Such applicant may not be able to establish his indigency for diverse reason. His conduct in applying for per mission to sue as an. indigent person might also be lacking in bona fides. In spite of that, the legislative intent behind bringing on the statute book R. 15A in O. 33 of the Code by the Amending Act appears to be to allow him to fight out his litigation on merits on his readiness to pay the requisite court-fees for the purpose. He has to be given the option to fight out his litigation on merits on payment of the requisite court-fees. It is possible that he may not want to fight out his litigation on merits on payment of the requisite court-fees. But then the option is to be given to him whether or not he wants to avail of the opportunity to proceed with his case on merits. The only condition in that regard would be the payment of the requisite court fees for the purpose. In order that he is in a position to exercise his option effectively, he has to be given time to pay the requisite court fees on the suit that he intended to file as an indigent person. If no time is given, he may not be able effectively to exercise his option. He might as well have second thoughts not to proceed with the case at that stage itself for diverse reasons. It is possible that he may not have sufficient funds to spend on the litigation. It may be that, with his limited or meager means, he might not want to take any chance over the litigation the outcome of which may not be certain. He can decide the course of action provided he gets some time for the purpose. I am therefore of the opinion that this legislative intent can be advanced or realised only if the bounden duty to grant time to such unsuccessful applicant to pay up the requisite court-fees on rejection or refusal of indigent person is spelt out from R. 15A of O. 33 of the Code. The principles of law emanating from the aforesaid case law lend support to my view that it is the bounden duty of the Court to grant time to the applicant to pay the requisite court-fees while rejecting his application under R. 5 or while refusing application under R. 7 of O.33 of the Code.
13. The statement of Objects and Reasons for introduction of Rule 15A in Order 33 of the Code buttresses the view, that is taken by me in this case. The purpose for introduction of Rule 15A on the statute book is, stated to be :
“Where the Court-rejects an application to sue as an indigent person or refuses to allow a person to sue as an indigent person the question arises whether the Court is bound to give time to the indigent person to pay the court-fee and, on such payment, to treat the plaint as having been filed on the day on which the application was filed. The position is not very clear and different High Courts have taken different views. New Rule 15A is being inserted to provide that upon such payments of the court-fee within such time as may be allowed by the Court, the suit shall be deemed to have been instituted on the day on which the application was presented.” –
Statement of Objects and Reasons (Gas. of Ind., 8-4-1974, Pt. II, S. 2, Ext., p. 333).
14. The same result would ensue if the problem is examined from a different angle. It cannot be gainsaid that an application for permission to sue as an indigent person is a composite document inasmuch as it contains an application as well as a plaint. As provided in Rule 8 of Order 33 of the Code, if such application is granted, it will be treated and registered as a plaint. It is deemed to be the plaint in the suit. It has further been provided therein that 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 thereon. If the application is rejected under Rule 5 or is refused under Rule 7 of Order 33 of the Code, it will have to be treated as a plaint with insufficient court-fees. Item 5 in Sch. II of the Bombay Court-fees Act, 1959 requires affixture of the court-fees in the sum of Re. 1on the application for permission to sue as an indigent person. Once that application is rejected, what would remain is the second part of the composite document, that is, the plaint, with the court-fee stamp of Re. 1 affixed thereon as against the requisite court fees payable thereon. Such plaint will have to be treated as a plaint with insufficient court-fees. A plaint with insufficient court-fees is liable to be rejected as provided under O. 7, R. 1 l (c) of the Code. It may be mentioned here that the relevant provisions contained in O. 7, R. 11(c)of the Code require grant of time to pay the deficient court-fees before rejecting the plaint on the ground that it is insufficiently stamped. An insufficiently stamped plaint is not liable to be rejected automatically on that ground. The plaintiff of such an insufficiently stamped plaint is required to be given time to pay up the deficient court-fees. His plaint can be rejected only if the deficient court-fees are not made good within the time-limit stipulated by the Court. As pointed out here in above, once the application is rejected under Rule 5 or is refused under R. 7 of O. 33 of the Code, the effect is that there remains an insufficiently stamped plaint. It cannot result into automatic rejection thereof. The Court is bound to give time to the plaintiff to make good the deficiency in the court-fees payable in that case.
15. Even if it is assumed that the court-fees stamp of Re. 1 to be affixed on the application for permission to sue as an indigent person as required by the relevant provisions contained in the Bombay Court-fees Act, 1959 cannot be set-off against the requisite- court-fees payable on the plaint on rejection or refusal of such application, the second part of the composite document, that is the plaint, will have to be treated as an unstamped plaint. The concept of an unstamped plaint is not absolutely unknown or novel in these days of agitational strikes resorted to by all and sundry time and again. The plaintiff intending to file a suit on the last day of the limitation period or for claimining an urgent order and for diverse reasons being unable to obtain the requisite court-fee stamps to be affixed on his plaint, I think he cannot be denied his right to institute his litgation simply because he is unable to affix the requisite court-fee stamps on his plaint. The Court can direct him to pay up the requisite court-fees on some future date. If that order of the court is not complied with, his plaint is liable to be rejected under O. 7, R. 11(c) of the Code. On rejection or refusal of the application for permission to sue as an indigent person under R. 5 or R. 7 of O. 33 of the Code, what would remain on record would be the second part of he composite document, that is, the plaint, without any court-fee stamps affixed thereon. The court is bound to give time to the plaintiff to pay up the requisite court-fees thereon. If that order of the Court is not complied with, the consequences specified in O. 7, R.11(c) of the Code may ensue. In either case, automatic rejection of the plaint is not contemplated simply on the plaint is not contemplated simply on the ground that the suit is instituted on sufficient court-fees or without any court-fees.
16. In either view of the matter, the Court is bound to grant time to the applicant to pay the requisite court-fees while rejecting the application under Rule 5 or refusing the application under Rule 7 of Order 33 of the Code.
17. If the Court fails in its duty it is always the duty of the Court to correct its default or lapse through oversight if it is brought to its notice or if it comes to its notice. The reason therefor is quite simple. It is a settled principle of law that no litigant could be made to suffer on account of any error or omission or default or lapse on the part of the Court. This Court in its Division Bench ruling in the case of Nanji Pancha v. Daulal Naraindas reported in (1970) 11 GLR at p 285 has recognised this settled principle of law while dealing with the case under the relevant provisions contained in the Bombay Rents, Hotel and Lodging Housing Rates Control Act, 1947.
18. There is no dispute that the order refusing the application under R. 7 of O. 33 of the Code in the instant case was pronounced in the presence of the learned Advocates for the parties. It is again not in dispute that both the learned Advocates for the parties signed the judgment in Civil Miscellaneous Application No. 120 of 1985 in token of their presence at the time of its pronouncement. Relying on this admitted factual position. Shri Lakhani for the petitioner has submitted that the learned Advocate for the present respondent in the trial Court could have requested the Court for grant of time to pay the court-fees when the application was refused under R. 7 of O. 33 of the Code. Omission to request for time on the part of the respondent herein at the relevant time, runs the submission of Shri Lakhani for the petitioner, would prove fatal to any subsequent request for the purpose.
19. It is difficult to accept this submission for two very good reasons. As pointed out here in above, it is the bounden duty of the Court to grant time to pay the requisite court-fees while rejecting the application under R. 5 or refusing the application under R. 7 of O. 33 of the Code whether or not such request for grant of time is made by or on behalf of the concerned party. It is needless to reiterate the settled principle of law to the effect that no litigant should ever suffer on account of any error or omission or lapse or default on the part of any court.
20. Equally well-settled principle of law is that no party should be penalised for default or lapse or omission on the part of his Advocate. In this connection a reference deserves to be made to the binding ruling of the Supreme Court in the case of Rafiq v. Munshilal, reported in AIR 1981 SC at page 1400 : (1981 All LJ 704). In that case one second appeal was dismissed for default of appearance on the part of the learned Advocate for the appellant. The High Court refused to restore it on an application made for the purpose. In that case :
“Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel.”
21. In view of this settled position of law, no fault can be found with the respondent herein when his Advocate did not pray for time to pay the requisite court-fees when the application was refused under R. 7 of O. 33 of the Code in his own presence.
22. I have found no force or merit in the contention urged before me by Shri Lakhani for the petitioner to the effect that the effect of the impugned order of the lower court was to extend the period of limitation when the suit had become barred in absence of grant of any time for payment of the requisite court-fees while refusing the present respondent’s application under Rule 7 of Order 33 of the Code. As pointed out by me earlier, when such application is rejected under Rule 5 or refused under Rule 7 of Order 33 of the Code, it would result into remaining on record an insufficiently stamped or unstamped plaint. Such insufficiently stamped or unstamped plaint does not call for automatic rejection as pointed out by me here in above. Again, the consequences of grant of time for payment of the requisite court-fees under Rule 15A of Order 33 of the Code have been provided. The effect of compliance with the order for giant of such time would be that the suit would be deemed to have been instituted on the date the application under O. 33 of the Code was made. If such application was made within ,the prescribed period of limitation, the suit could not be said to have been barred by the Law of Limitation on payment of the requisite court-fees pursuant to the order granting time for the purpose.
23. These were the only contentions urged before me in support of this revisional application. I have found no merit or substance in any of them. The impugned order passed by the lower court calls for no interference by this Court in exercise of its revisional powers under S. 115 of the Code.
24. It may be mentioned at this stage that the effect of the order is that the respondent herein is permitted to fight out his litigation against the present petitioner on merits. The rights of the parties or the merits of the controversy between the two have not come to be decided by or under the impugned order. In that view of the mater, it cannot be gain said that by this impugned order the learned trial Judge has acted only in advancement or in furtherance of substantial justice. Such order as has the effect of causing substantial justice between the parties cannot and need not be interfered with by his Court in exercise of its revisional powers under S. 115 of the Code.
25. The ruling of this Court in the case of Vasantrao Laxmanrao Sahane v. Sanghvi Amritlal Becharlal (1966) 7 Guj LW at page 840 buttresses the aforesaid view taken by me. It has been held in para 6 at page 848 of the reported ruling:
“It is now well-settled by a series of decisions of several High Courts that the High Court is not bound to interfere in revision in all cases in which it is found that the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of jurisdiction. The High Court will exercise its revisional powers only in aid of justice and not merely to give effect to a technicality which would not further the ends of justice. Where the High Court finds that substantial justice has been done between the parties by the order of the subordinate Court, the High Court will not interfere with such order merely because the case comes within any of the three clauses of S. 115. See the decision of this Court in Jagmohandas v. Jamnadas, (1965) VI GLR 49: (AIR 1965 Guj 181).”
The aforesaid observations of this Court in its ruling in the case of Vasantrao Laxmanrao Sahane (supra) are on all fours applicable in the present case.
26. In the result, the petition fails. This revision application of his is hereby rejected. Rule is accordingly discharged however with no order as to costs on the facts and in the circumstances of the case. The interim relief granted earlier is vacated.
27. It appears that the respondent made his application to sue as an indigent person wayback in 1985. It took nearly two years’ time for its disposal. This revisional application against the impugned order was failed on 30th January, 1988. It has taken more than four years for its disposal. It is unfortunate that nearly seven years have rolled by since the date the respondent herein made his application for permission to sue as an indigent person. Ordinarily, if the suit was instituted in an ordinary manner, by this time it might have stood disposed of. In these Circumstances, I think the learned trial Judge deserves to be and is hereby directed to accord the topmost priority to disposal of this suit preferably by 31st December 1992. The Registry is directed to send the writ in this case together with the record and the proceeding (if at all called for) to the trial Court as expeditiously as possible.
28. Petition dismissed.