P L D 1968 Karachi 883 (PLP)

He submits firstly, that the application should not have been entertained as it was not supported by an affidavit, Secondly, he submits that the impugned order is illegal, because no notice was given to him, and finally, he submits that the application under Order XXXIII, rule 1, was made mala fide by the plaintiff, and therefore the learned Judge acted illegally and capriciously in exercising his discretion in favour of the respondent‑plaintiff. The first contention is of a technical nature and is not of any importance. However, the other contentions of counsel require examination, and the main question in this revision is whether the learned Judge exercised his discretion judicially in condoning the delay of the respondent‑plaintiff of nearly three years in the payment of Court‑fees. In order to decide this question, it is necessary to examine the evidence in the pauper enquiry held under Order XXXIII, C. P. C. by the Court.

4. The only evidence given by the respondent‑firm of their alleged pauperism was the evidence of Haji Ali Muhammad, a partner of the said firm. He was examined on 4th September 1962, and in his evidence‑in‑Chief, he merely stated "I have handed over all my properties to my creditors, I am now insolvent." As the respondent did not give evidence of his means at the material date, namely, 23rd May 1961, when the application under Order XXXIII, rule 1, C. P. C. was filed, he was cross‑examined by the applicant. In his cross‑examination, he admitted that he had owned extensive properties, that he had sold certain properties for Rs. 2 lakh in 1959, but he did not give any explanation as to what happened to the two lakhs He also admitted to having sold some property, which he did not specify, to his nephews Haji Ahmed and Haji Yousuf. In his re‑examination he stated "These lands have been sold by us against mortgage. These sale agreements were old." The applicant‑defendant also examined several witnesses, who stated that the respondent‑firm had had business dealings with them Haji Hafiz Abdul Aziz (Exh. 36), one of these witnesses, said in evidence that Haji Ahmed and Haji Yousuf were the nephews of Haji Ali Muhammad; and that Haji Ali Muhammad had transferred all his immovable properties to the said nephews The learned counsel submits that the only inference from this evidence is that the application under Order XXXIII, rule C. P. C. was mala fide. Haji Ali Muhammad admitted in cross‑examination that he had sold a property of which he gave no particulars, to his nephews. He also admitted that he had sold 10 shops in December 1961, for Rs. 50,

000. It is true that he made a vague statement in. re‑examination that his lands were sold against mortgages. Even if the word 'Lands' was meant to include shops, which is doubtful. Haji Ali Muhammad did not give any particulars of the alleged mortgage, nor did he examine the alleged mortgagees. In view of his admission that he sold shops for Rs. 50,000 more than six months after the filing of the said pauper application, I am of opinion that it was for Haji Ali Muhammad to explain how he was a pauper. The only inference that can be drawn from his evidence is that he had the means to pay Court‑fees and wilfully tried to avoid payment of Court‑fees.

5. Further, Haji Ali Muhammad admitted that he was a partner of the respondent‑firm, which included four other partners. The question, therefore arises whether a firm can file an application under Order XXXIII, rule 1, C. P. C. The said rule merely states that any person can file such an application. The word "person" is not defined. However, under clause 39 of section 3 of the General Clauses Act, a person includes companies and associations or bodies of individuals, whether incorporated or not. Relying on this definition in the General Clauses Act, it was held by the Nagpur High Court in Shree Shankartji Maharaj and another v. Mst. Godavaribai (A I R 1935 Nag. 209) that a "person ' under Order XXX, C. P. C. means all those who have a right to institute a suit under the Code of Civil Procedure. As a firm can sue under Order XXX, C. P. C., it should be entitled to file a pauper application under Order XXXIII, C. P. C., the more so as the provisions of Order XXXIII are of an ameliorative nature and should be interpreted liberally by the Courts. In Cassim & Sons v. Abdul Rahman (A I R 1930 Rang. 272) a Division Bench of the Rangoon High Court held that a firm was entitled so sue under Order XXXIII, C. P. C. I follow, with respect, this judgment, and hold that a firm can sue under Order XXXIII, C. P. C. But whilst a firth is given the right to bring a suit under the provisions of Order XXX of the Civil Procedure Code, a firm is not a legal entity and is only a convenient means for describing the partners of a firm. The rights and liabilities of the firm are the rights and liabilities of the partners, and the obligation of the firm to pay Court‑fees is an obligation for which each one of the partners is liable. Therefore, in order to invoke the benefit of Order XXXIII, C. P. C., the firm has to show that none of its partners have the means to pay Court‑fees and are paupers within the explanation of Order XXXIII, rule 1, C. P. C. As the respondent‑firm examined only one out of its five partners, namely, Haji Ali Muhammad, in the absence of evidence about the means of the other partners, I am of opinion that there was no evidence on which any Court could have held that the plaintiff-respondent was entitled to file a pauper application, and consequently there was no explanation of the delay in the payment of Court‑fees between May 1961 and May 1964.

6. The only grounds taken by the plaintiff-respondent in the application under section 149, C. P. C. for condoning delay were that the claim was large and that the application under Order XXXIII, rule 1, C. P. C. had been filed "on the last day of the period allowed to him under the law of limitation and the plaintiff has no chance of filing this suit again." The second ground taken was not correct. According to the application under Order XXXIII, rule 1, C. P. C., the cause of action of the plaintiff‑respondent had arisen on 9tb September 1958, and the application was filed on the 23rd May 1961. Therefore, the statement that the said application was filed on the last day of limitation was utterly incorrect. The only ground then for the application of the plaintiff‑respondent under section 149, C. P. C. was that their claim was huge, and that if the application was not allowed, it would be time‑barred the learned Judge has allowed the application on this ground and the question for consideration is whether a plaintiff, who wilfully delays payment of Court‑fees should be allowed the benefit of section 149, C. P. C merely because his claim is huge. In his brief order, the learned Judge has referred to the judgments of the Nagpur, Orissa and Bombay High Courts, and there is no doubt that these judgments have taken the view that in dismissing a pauper application, the Court can or should extend time under section 149, C. p. C. to the applicant to pay Court‑fees. The same view was taken by the Lahore High Court in Gir v. Banwari Lal (A I R 1938 Lah. 41) whilst the Madras and the Calcutta High Courts taken the view in Sundaithammal and another v. Paramaswami Ansari and others (A I R 1933 Mad. 583) and Jagadiswari Debi and others v. Tinkari Bibi and others (A I R 1936 Cal. 28) respectively, that even after a pauper application is dismissed, the Court can extend time for the payment of Court‑fees. But on the other hand, in Alopi Prashad and others v. Mst. Gappi and others (A I R 1937 Lah. 151) the Lahore High Court held that after a pauper application has been dismissed, the Court has no power to extend time for the payment of Court‑fees and this judgment was followed in another Division Bench of the Lahore High Court in District Official Recelver v. Sahanlal Ramji Dass & Co. (I L R 22 Lah. 652). There is therefore considerable conflict of authority on the legal questions involved in this revision application. The leading case on the subject is the judgment of the Privy Council in Skinner v. Order (I L R 2 All. 241) and all the conflict of authority noted by me turns on the interpretation of this case. However in order to appreciate the conflicting views taken by the High Courts, it is necessary briefly to set out the relevant provisions of the Civil Procedure Code. The relevant provisions of section 149 are as follows: "

149. Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court‑fees has not been paid, the Court `may', in its discretion at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may, of such Court‑fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance." The relevant provisions of Order XXXIII are rules 2, 8 and

15. Rule 2 states that an application to sue as a pauper shall contain all the particulars that are required in a plaint. Thereafter, Order XXXIII provides for the hearing of evidence about the means of the alleged pauper, and then rule 8 states that if the pauper application is granted "it shall be numbered and registered and shall be deemed the plaint in the suit and the suit shall proceed In all other respects as a suit instituted in the ordinary manner." Rule 15 states as follows: "An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue: but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the Provincial Government and by the opposite‑party in opposing his application for leave to suit as a pauper." At the outset, I have to point out that when Skinner v. Orde was decided the corresponding provisions of the Civil Procedure Code then in force were different from the provisions of rule 15, C. P. C. quoted here, and there was no provision analogous to section 149, C. P. C. The material facts in Skinner v. Orde were that Skinner filed an application to sue as a pauper for the recovery of various properties, and an enquiry was held into his pauperism. But after evidence was recorded, Skinner presented an application for leave to deposit the court‑fees, and stated that he had succeeded in negotiating a loan for a sum of money sufficient to pay the requisite court‑fees. The subordinate Judge, who was hearing the case, found that there had been no fraud by the plaintiff in filing his pauper application and accordingly he allowed the payment of court‑fees, but held that the case should be deemed to be filed on the day when Court‑fees were paid. The appeal to the Privy Council was taken on the point as to when the suit should be deemed to have been filed. It is therefore important to remember that in Skinner v. Orde the bona fides of the plaintiff were not in dispute. On the contrary, unlike the conduct of the plaintiff‑respondent in the application before me, the conduct of Skinner, in obtaining a loan in order to pay court‑fees, was highly meritorious; and it was in this context that the Privy Council stated at page 251 of the judgment as follows:‑ "There are no negative words in the Act requiring the rejection of the plaint under circumstances like the present nor anything in its enactments which would oblige their Lordships to say that this petition, which contains all the requisites which the statute requires for a plaint, should not, when the money has been paid for the fees, be considered as a plaint from the date that it was filed ; The claim may be utterly untenable, but on the assumption that the claim is a good one, nothing more unjust to the plaintiff could have happened than that he should have been deprived, by having done an act which is in itself meri torious, of the benefit which he would have had if he had been found to be a pauper." But in allowing the appeal, the Privy Council gave a warning which is very significant. In reference to Skinner's conduct, the Privy Council stated:‑ "He was a pauper when his petition was filed. Supposing there had been any fraud found by the Judge, the consideration which would determine the judgment would then have been different." This part of the Judgment of the Privy Council has not been considered by the Courts which have taken the view that time should be extended to the plaintiff under section 149, ref, C. P. C. for the payment of Court‑fee when a pauper application is dismissed, and it is perhaps in consequence of this omission that the conflict of authority noted by me has arisen. Further, as I have pointed out, when the judgment of the Privy Council was given, the provisions of the Civil Procedure Code as to the effect of the dismissal of a pauper application were different from those in force now. The relevant part of Order XXXIII, rule 15, C. P. C. (which was not in tile Civil Procedure Code at the time of the judgment of the Privy Council in Skinner v. Orde) states that when a pauper application is dismissed "the applicant shall be at liberty to institute a suit in the ordinary manner". It was on account of this provision that Mr. Justice Abdul Rashid stated in Alopi Prashad v. Msr. Gappi that if a pauper application is allowed, it ripens into a plaint, but that if it is rejected "it cannot be deemed to be a plaint and the payment of the Court‑fee after the application to sue in forma pauperis has been rejected cannot revive a potential plaint which ceased to exist when the application to sue in forma pauperis was rejected." The position is not quite the same when the Court extends time to the plaintiff to pay Court‑fees before passing an order dismissing the pauper application, and it was on the basis of this distinction that Mr. Justice Abdul Rashid distinguished his earlier judgment in Alopi Prashad v. Mst. Gappi and held in Gir v. Banwari Lal that before a pauper application is dismissed, a Court can, at the same time, pass an order for extension of time for payment of Court‑fees. It is true than there is distinction between an order for the extension of time made before and after pauper application is dismissed by a Court. But is the distinction material? Does it not enable the plaintiff to by‑pass the provisions of Order XXXIII, rule 15, C. P. C. which clearly state that if a pauper application is dismissed the applicant can file a suit "only in the ordinary course". if, during the pendency of the pauper application, the plaintiff's claim has become time‑barred, an order by the Court for the extension of time to pay Court‑fees before the formal dismissal of the pauper application enables the applicant to avoid filing a suit in the ordinary course, and accordingly the Court's order for extension of time deprives the defendant of his right to plead limitation. Is this consistent with the object of Order XXLXIII, rule 15, and if the conduct of the plaintiff has not been bona fide, why should the Court deprive the defendant of the valuable right of limitation ? It is true that till a pauper application is dismissed, the Court has scisin of the case, and has, therefore, the power to pass orders to extend time. But the power conferred whether under Order XXXIII or under section 149, C. P. C. is a discretion which has to be exercised judicially. If a plaintiff has filed a pauper application dishonestly, the Court should not allow him extension of time, and if time is extended as a matter of course, such an order defeats the provisions of section 149, C. P. C. In this connection, counsel for the respondent; has referred me to a judgment of Mr. Justice Kaikaus in Karim Bakhsh v. Qadir Bakhsh (P L D 1954 Lah. 228) in which while upholding on merits an order of the trial Court extending time for the payment of court‑fees, Mr. Justice Kaikaus observed ;at page 232 as follows:‑

"As was pointed out in Jagat Ram v. Misar Kharaiti Ram A I R 1938 Lah. 351 ordinarily the discretion under section 149, C. P. C. should be used in favour of the plaintiff who acts in good faith and in order to disentitle a party to an extension of time, there should exist mala fides or cause of a similar nature. The phrase "good faith' is here used not in the sense in which it is used in the Limitation Act but in the sense in which it is used in the General Clauses Act. In that sense an act may be done in good faith though it is done negligently." The question of the proper interpretation of section 149 of the C. P. C. has also been considered by a Division Bench Judgment of this Court in Ahmad Yar v. Mst. Hajran (P L D 1966 B J I). The facts of this case were that a suit for pre‑emption was filed in August 1956 with an application for extension of time. The application was granted, and the Court allowed time for payment of court- fees till tad October 1956, and then, on two further applications by the plaintiff, extended time first to 12th October 1956 and then to 18th October 1956, on which date the plaintiff paid court -fees. The effect of these extensions of time would have been to deprive the defendant of the plea of limitation. The orders for extension of time were challenged by the defendant, and this question was taken in appeal to the High Court Mr. Justice Sajjad Ahmad Jan, who delivered the judgment of the Court, stated as follows at page 4 of the Judgment: "The question, however, that arises for consideration is whether the indulgence repeatedly shown to the plaintiff by the learned trial Judge in filing the requisite court‑fee stamp was a judicial exercise of the discretion by him under section 149 of the Code of Civil Procedure. There is no doubt that the extension may be granted to a plaintiff for a good cause shown but it is not to be done as a matter of course to cover negligent conduct and wilful default." This is a Division Bench judgment by which I am bound and which, in my humble opinion, lays down the correct law. Further, there is nothing in the provisions of Order XXXIII to exclude the operation of section 149, C. P. C. Therefore, with very great respect to the eminent Judges who have held that a plaintiff is entitled as a matter of course to extension of time for payment of court‑fees during the pendency of a pauper application, I am not able to share that view, nor can I accept the view that before dismissing a pauper application, the Court has power to condone the delay of the pauper applicant to pay court‑fees, at least when an extension of time would deprive the defendant of the defence of limitation. I am of opinion that even when a Court has not dismissed a pauper application, the applicant is not entitled to extension of time for payment of Court‑fees, unless he shows good cause in support of his application under section 149, C. P. C. I am fortified in my opinion by a Full Bench judgment of the Allahabad High Court in Chmina Mal v. Bhagwant (A I R 1936 All. 584). By a majority judgment Mr. Justice Sulaiman, C. J. and Mr. Justice Bennet held that when an application for permission to sue as a pauper is dismissed, the Court can, in its discretion under section 149, C. P. C., allow the applicant to pay Court‑fees, but that the plaintiff is not entitled to an extension of time as a matter of course. At page 588 of the judgment Mr. Justice Sulaiman states as follows: "Section 149 gives discretion to the Court to allow Court‑fees to be made good during a further time allowed. The Court is not bound to grant such further time. Where it is satisfied that the applicant acted bona fide or was led by some mistake to make the application in forma pauperis; it may very well allow him time to make good the deficiency. On the other hand, if the Court is satisfied that he acted fraudulently and dishonestly, it may very well refuse to grant him time to deposit the Court‑fee, particularly when the period of limitation has expired." It is true that Mr. Justice Allsop dissented from the majority judgment, but for the reasons given, I think that the majority view was the correct view, and in fact has been followed by other High Courts. Thus the majority judgment of the Allahabad High Court was followed by the Calcutta High Court in Biswa Nath v. Khejerali Molla (A I R 1939 Cal. 394) and the same view has been taken in Vamarao Lallabhai v. Pranlal Bhagwandas (A I R 1944 Born. 63) and Lai Mistry v. Ganrsh Mistry (A I R 1938 Pat. 120). Any other view would, in my opinion, be inconsistent with the judgment of the Privy Council in Skinner v. Orde.

7. I shall now examine again the facts of the revision application. As in the case of Skinner v. Orde, the application of the plaintiff‑respondent for permission to sic as a pauper was pending when the plaintiff respondent made an application for permission to pay Court‑fees. However, unlike 'the cafe before the Privy Council, the plaintiff‑respondent did not submit any explanation for his failure to pay Court‑fees when the pauper application was tiled in 1961. The only grounds taken by the plaintiff-respondent in his application under section 149, C. P. C. were that the claim in the suit was a huge claim, which would get time‑barred unless the application was granted, and that the pauper application was filed on the last day of limitation. Presumably, the second ground was taken in order to submit that the pauper application was filed hurriedly. However, the pauper application was filed some months before the expiry of the period of limitation and thus the plea taken was incorrect, if not false. Therefore, the only plea on which the application was based was that the claim was huge and that it would get time‑barred if the application was not allowed. The learned Judge accepted this plea and allowed, the application, because the claim was huge and would otherwise get time‑barred. The learned Judge failed to consider that if the claim was hug, an order for the extension of time without sufficient cause would deprive the applicant‑defendant of a very valuable right to plead limitation against a huge claim. In passing the impugned order, as I have pointed out, the learned Judge relied on the judgments of the Bombay, Nagpur and Orissa High Courts. It is true that the judgment of the Nagpur High Court in Chudaman Shamrao Ranjari Babuji v. Daduappa Wani (A I R 1944 Nag. 357) supports the order passed by the learned Judge. But in Sewant v. Chavan (A I R 1943 Bom. 292) the Court held that it has a discretion, when a pauper application was dismissed, to extend time for the payment of Court‑fees for sufficient cause shown; and similarly in Jinatun Nisa Bibi v. Idrakun Nisa (A I R 1950 Orissa 183) the Court took the view that in dismissing the pauper application, the Court may allow the petitioner to pay Court‑fees so as to save the suit from limitation. Therefore, In the instant case, the trial Judge could have granted the application of the plaintiff‑respondent only if the application had disclosed sufficient cause. As I have pointed out, the application did not show any cause, still less sufficient cause. On the other hand, the pauper application was not filed bona fide, and the consequence was that there was a delay of nearly 3 years by the plaintiff‑respondent in the payment of Court‑fees, for which there was no explanation whatsoever. In these circumstances, the order of the learned Judge condoning this unexplained delay was an illegal exercise of his jurisdiction which has to be set aside.

8. The other contention of the applicant is that the order was illegal, because it was passed without notice to him and that it could not, therefore, affect his rights. In Aon Muhammad v. Rehabilitation Commissioner (P L D 1966 Lah. 319) a Division Bench of this Court has held that when an ex garte condonation of delay is made by a Court the affected parties can always, on coming to know of such orders, take exception thereto and claim that the suit is time‑barred and that the extension of time, if any, is illegal. In view of this judgment, the ex pane order of that trial Court, which was intended to save the suit from being dismissed as time‑barred, cannot affect the right of the applicant to challenge the said order as illegal. It is true that the' plaintiff respondent has paid Court‑fees in pursuance of the order, but this order was passed without hearing the applicant‑defendant. The applicant‑defendant had been contesting the pauper proceedings. It is true that he was not present to Court on the 28th March 1964. But as the case was only fixed on the said day for orders on the plaintiff respondent's pauper application, his presence was not necessary and as he had no notice of the application under section 149, C. P. C. which he could not anticipate, he was not present in Court when the Impugned order was passed. I am constrained to observe that it was unfortunate hat the Court did not order notice to the applicant‑defendant of this application under section 149, C. P. C., the more so as the plaintiff‑respondent was not prepared to pay Court‑fees immediately and had made a prayer for further time to' pay Court‑fees, which was allowed by the learned Judge. It would have been much better, in these circumstances, if the application had been decided after hearing both parties, as it was obvious that the applicant‑defendant would have contested the application if he had been given an opportunity so to do. In the result, the plaintiff‑respondent must bear the loss caused by the ex parte orders obtained by him.

9. The order of the learned Judge dated the 20th March 1964, is, therefore, set aside and the revision is allowed with costs. A. E. Revision allowed.