P L D 1966 Azad J & K 15 (PLP)

MUHAMMAD SHARIF, ACTG. C. J.‑This is an appeal under the Land Acquisition Act against the order of the District Judge, dated 28‑2‑63 passed in reference proceedings. The reference Court allowed a compensation of Rs. 1,048‑4‑

0. According to the appel lants they are entitled to a compensation of Rs. 5,590‑12‑

0. Now they claim a difference of Rs. 4,552‑8‑

0. A Court‑stamp of Rs. 2 was affixed on the memorandum of appeal. The learned Government Advocate took objection to the insufficiency of the court‑fee paid and the learned counsel for the appellants conceded that an ad valorem court‑fee was payable on the difference in the amount of the compensation that the appellants claimed. The Court by its order, dated 5‑6‑63, ordered that the appellants shall make up the deficiency in the Court‑fee by 11‑7‑1963. The appellants did not make up the deficiency in the Court‑fee on 11‑7‑63 but instead made an application that they be allowed to continue the appeal in forma pauperis. The learned Government Advocate filed objections to the application made by the appellants for continuing the appeal in forma pauperis It was contended on behalf of the learned Government Advocate that the application for leave to continue the appeal in forma pauperis was time‑barred and that the appeal itself has also become time‑barred; and that on his raising the objection with regard to the insufficiency of the Court‑fees stamp, the learned counsel for the appellants having admitted that the court‑fee was deficient, the appeal should have been dismissed for failure of the appellants to comply with the order of the Court, dated 5‑6‑63, when they failed to make up the deficiency on 11‑7‑

63. It was also the contention of the learned Government Advocate that after the filing of the appeal in the ordinary manner, no application for continuing the appeal in forma pauperis could be made under the law. The learned Government Advocate referred to Order XLIV, rule 1, C. P. C. which provides that "any person entitled to prefer an appeal, who is unable to pay the fee required for the memoran dum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to, the provisions relating to suits by paupers, in so far as those provisions are applicable." It was argued by the learned Government Advocate that he who wanted to file an appeal in forma pauperis had to make an application accompanied by the memorandum of appeal; and that it was apparent from the language used in Order XLIV, rule 1 that the application could be made only when the memorandum of appeal had been filed and not after the filing of the memorandum of appeal. Order XLIV, rule 1, is subject to the provisions of the Order XXXIII, C. P. C. There are a number of authorities wherein it has been held that a suit begun in the ordinary manner, may be continued in forma pauperis. It is competent to the Court to allow a suit not originally instituted in forma pauperis to be conti nued in forma pauperis. A I R 1934 Cal. 25, I L R 8 Bom. 615, A I R 1933 Mad. 498, A I R 1929 Mad.

828. A I R 1936 Mad. 158, and A I R 1938 Mad. 486 may be referred to. In A I R 1934 Cal. 25 Malik and Jack, J. J. relying on 2 Cal. 130. 8 Bom. 615; A I R 1933 Cal. 238 held that:‑

"A Court has the power to allow a plaintiff to continue a suit, instituted in the ordinary way, in forma pauperis." Malik, J. .observed that:‑

"On general principle where a Court can allow a plaintiff to sue as a pauper, it is only reasonable to hold that that Court has the power to allow him to continue a suit that has been insti tuted in the ordinary way, in forma pauperis." The facts in A I R 1929 Mad. 828 were that "the plaint already filed with a stamp‑duty was found to be inadequate. A written statement was put in and issues settled and the Court at a trial of an issue as to the Court‑fee wanted additional Court‑fee which in amount was so large that the plaintiff could not pay it. An application for permission to continue the suit in forma pauperis was preferred." It was held by Kumara Swami Sastri and Walsh, JJ. that "the application should not be dismissed on the ground that it was not presented as required by rule

8. In such cases the Court should see whether the plaint disclosed a cause of action and should issue notice to the opposite side and to the Government to see if the plaintiff was really a pauper unable to pay the additional stamp and if so found he should be allowed to continue the suit in forma pauperis." It was held by Madhavan Nair and Jackson, JJ. in A I R 1933 Mad. 498 that "the plaintiff may be allowed to continue the suit as a pauper though when he instituted it he had paid Court fee on it. A plaint was filed on payment of Court‑fee which was found to be insufficient. The Court ordered the plaintiff to supply the deficit before a certain date. On the last date the plaintiff applied to continue the suit as pauper. The Court held that the plaintiff not having paid the Court‑fee as ordered, the plaint stood rejected and there was no plaint to be continued, held that the application being made at a time before the plaint could be rejected was maintainable and should be considered." A I R 1936 Mad. 158. was a case in which it was held by Varadachariar, J. that "If later on the Court considers an addi tional fee necessary, and if in truth and fact the plaintiffs are not possessed of means to pay the additional fee, there is nothing inconsistent with the scheme of the Code giving the plaintiffs the benefit of the provisions of the Order XXXIII". In A I R 1938 Mad. 486 letters of administration had been ordered to issue. All that remained to be done was for the applicants to pay the appropriate Court‑fees computed upon the value of the estate and, upon this being done, letters of administration were to issue. At this stage an application was made pursuant to the provisions of Order XXXIII, C. P. C. It was held by Gentle, J. that he saw no reason why an application by a petitioner for grant of probate or letters of administration cannot be subject to the provisions of Order XXXIII, C. P. C. It was ordered that the letters of adminis tration will issue to the applicants in forma pauperis. A further order was made that the fee payable to the Government under section 19‑1 Court‑fees Act, and any other Court‑fees which are payable will be a first charge upon the subject‑matter of the grant pursuant to Order XXXIII, rule 10, C. P. C. There was a further order that the applicants will pay the Court‑fees which they are now excused from paying. It is clear from this authority that even during the pendency of the proceedings, the proceedings can be allowed to be continued in forma pauperis though not originally instituted in forma pouperis. The appellant show that they had to pay no Court‑fees in the Court of the reference Judge and they thought that no Court‑fees was payable in Land Acquisition cases even in the Appellate Court. However, they had treated the appeal as a miscellaneous appeal and affixed a court‑fee of Rs. 2 but now that it transpires that they had to pay a Court‑fee ad valorem on the sum of Rs. 4,552‑8‑0, they had not the means to pay the court‑fees, and, therefore, they had applied that they may be allowed to continue the appeal in forma pauperis. We hold that the Courts have powers to allow an appeal instituted in the ordinary manner, to be continued in forma pauperis when it is discovered that the appellants cannot pay the additional court‑fees demanded. Now we take up the question of limitation raised by the learned counsel for the respondents. The learned counsel has referred to Art. 170 of the Limitation Act which governs an application for leave to appeal as a pauper and the limitation prescribed is 30 days which is to run from the date of the decree appealed from. The learned Government Advocate argued that even if the appellants can be allowed to continue the appeal in forma pauperis the application for leave to continue the appeal in forma pauperis is time‑barred from the date of the original decree and also from the date of his raising the objection and from the date the Court ordered the, appellants to makeup the deficiency. The date of the order of" the reference Court from which the appeal was filed is 28‑2‑63 and the appeal was filed on 26‑4‑

63. The objection with regard to the insufficiency of the Court‑fees was taken on 5-6‑63 and on the same day the Court passed an, order that the appellants shall make up the deficiency .in the Court‑fees by 11‑7‑

63. If we com puted the period of 30 days from the date of the decree or from the date of the objection taken and the order of the Court calling upon the appellants to make up the deficiency, the application is certainly time‑barred but we are of the opinion that Art. 170 of the Limitation Act applies to a case where the appeal is originally filed in forma pauperis' and not where the appeal is filed in the ordinary manner but the appellants are subsequently allowed to continue the appeal in forma pauperis. The terminus a qua pres cribed in Art. 170, Limitation Act is the date of the decree appealed from. If the period of 30 days is to be counted from the date of the decree then, we are afraid, nobody can be allowed to continue the appeal filed in the ordinary manner, in forma pauperis. The ordinary period of limitation for filing an appeal before the High Court is 90 days while Art. 170 of the Limitation Act prescribed a limitation of 30 days for making an application from the date of the decree. If an appeal is filed in the ordinary manner within 90 days, the period of 30 days had already expired from the date of the decree, therefore, the period of 30 days could not be computed from the date of the decree. We think that Art. 170 of the Limitation Act does not apply to cases where the appeal is filed in the ordinary manner but subsequently when it is discovered that the appellant cannot pay the additional court‑fee demanded, he is allowed to continue the appeal in forma pauperis. For such cases there is one limitation that the appellant has to apply for leave to continue the appeal in forma pauperis before the expiry of the date fixed by the Court for making up the deficiency in the Court fee by the date fixed by the Court otherwise the suit or appeal shall be dismissed and after such dismissal no permission can be granted to continue the proceedings in forma pauperis. Therefore, if the appellant wants to continue the prosecution of the appeal in forma pauperis he has to apply before his appeal is dismissed for failure to make up the deficiency in the Court‑fee. In the present case the appellants were ordered to make up the deficiency by 11‑7‑63 and on this date they put in an application for leave to continue the appeal in forma pauperis, therefore, there could be no dismissal of the appeal before the making of the application and we treat the application as within time. The learned counsel for the respondents cited A I R 1933 All. 308, wherein an application for leave to appeal in forma pauperis was rejected as being presented beyond time. Subsequently an application for extension of time under section 5 of the Limitation Act was held to be not maintainable as no appeal was pending. This authority is not applicable on the facts of the present case because the application for leave to continue the appeal in forma pauperis has not been rejected nor has the memorandum of appeal been rejected. We hold that neither the application for leave to continue the appeal in forma pauperis nor the appeal itself is time barred. Towards the end it was proposed by the learned counsel for the appellants that they be allowed to draw Rs. 1,048‑4‑0, the amount of the compensation that has been awarded by the reference Court and then they will make up the deficiency in the Court‑fee. The learned Government Advocate, however, suggested that following the analogy of A I R 1938 Mad. 486 where letters of administration were issued in forma pauperis and the amount of the Court‑fee was made a first charge on the estate, the Court‑fee payable be made a first charge on the amount of the compensation awarded by the reference Court. Having allowed the appellants to continue the appeal in fore‑is pauperis, it is ordered that the Court‑fee payable on the difference of compensation Rs. 4,552‑8‑0 shall be a first charge on the amount of compensation determined by the reference Court. The Collector shall be informed of this order. It is, further, ordered that the appellants shall pay the Court‑fee which they are now excused from paying, if the Court fees is not realised from the amount of the compensation lying with the Collector. To come up, for arguments, on 13‑2‑1965. K. B. A. Order accordingly.