P L D 1955 Sind 370 (PLP)

INAMULLAH, J.--‑This is an application under sections 148 and 149 Civil P. C. and arises under the following circum stances‑ The applicant made an application under Order XXXIII Civil P. C. for permission to sue in forma pauperis.‑ The applica tion was presented on 27th January, 1953. The evidence, pro duced by the applicant as well as by the opposite party, was recorded by the Registrar O. S. The application was dismissed by the Registrar O. S. on 27th July, 1954. The learned. Registrar O. S. came to the conclusion that "The applicant had money with which to pay Court‑fee." He held that the applicant was not a pauper and dismissed the application accordingly. The application purports to have been dismissed under Order XXXIII Rule 7 Civil P. C. The applicant, after his application was dismissed filed the requisite Court‑fees in stamp papers in Court on 26th August, 1954 along with an application as already mentioned above, under sections 148 and 149 Civil P. C. The application men tions just 2 facts namely that the Registrar O. S. had disallowed the application of the applicant to sue in forma pauperis and that he had made good the Court‑fees. The prayer in the application is two fold (a) To accept the Court‑fee that has been filed in stamp papers in Court, and (b) To allow the plaintiff applicant to file an amended plaint. It has been contended by the learned advocate .for the opposite party that no such application is maintainable. It is urged that the Court, where an application for leave to sue as a pauper has been refused, cannot allow the Court‑fees to be accepted under section 149 so as to treat the suit as one instituted on the date of the filing of the pauper application. The effect of allowing the application under section 149 Civil P. C. would be to treat the suit as one instituted on the date of the filing of the pauper application. In the present case, the suit would be deemed to be instituted on 27th January, 1953 and not on the date when Court‑fees was duly paid, namely on 26th August, 1954. On the question whether the Court can allow Court‑fees to be paid under section 149 so as to treat the suit as one insti tuted on the date of the filing of the pauper application and not on the date, on which the Court‑fees are paid, there appears to be some conflict between the various High Courts. The better view, in my opinion, appears to be that the proceedings are completely disposed of upon the refusal of the application and that, thereafter the Court has no power under section 149 to allow the Court‑fees to be paid. Though there is conflict of opinion between the various High Courts but the preponder ance of opinion appears to be favour of the view that the proceedings are completely disposed of after the refusal of the application under Order XXXIII, Rule 7 Civil P. C. and there after, the Court has no power under section 149 Civil P. C. to accept the Court‑fees. It would be convenient and also would help to confirm the point of view that I have taken if I take the views of different High Courts one by one. It would, in my opinion, be more profitable and helpful to consider the pronouncement of their Lordships of the Privy Council in the case of Stuart Skinner ((1878) 6 1 A 126). The High Courts which have laid down the contrary views, have tried to take support from this decision. The case before their Lordships of the Privy Council was a case where a it application to sue as pauper had not been refused and the matter was still under enquiry and investigation when, the applicant in that case converted the matter into a regular suit .by paying the Court‑fees. In that case, the Subordinate judge had allowed the applicant to convert the application into a regular plaint but had held that the period of limitation for the suit must be computed from the date of such conversion. The High Court, in appeal, also took the view that the application should be taken to have been converted only from the day when the Court‑fees were paid. There was an appeal to the Privy Council and their Lord ships of the Privy Council in that case observed "The petition if filed, and proceedings are taken to inquire into the pauperism, which are delayed by various orders of the Court . . . until a very considerable period of time has elapsed. Then pending that inquiry, the plaintiff, by paying the amount of stamp‑fees into Court admits he is no longer desirous to sue as a pauper, and gives up so much of the prayer of his petition as asks to be allowed so to sue but no more . . . . Is there then anything in the Act which requires that in such a state of things the petition of plaint shall be rejected altogether and the plaintiff be compelled to com mence de novo ? . . . The plaint is not converted into a plaint from the time only but remains with its original date on the file of the Court . . . In their view... the suit must be deemed to be instituted when the application was filed." It is clear from the above pronouncement of their Lordships of the Privy Council that the point raised by their Lordships was not provided by the old Act. Their Lordships were dealing exclusively with a case which was not expressly provided for in the Act VIII of 1859. It is, therefore, not possible to hold that the question which arises in the present case is conclusively to be determined by the pronouncement in the case of Stuart Skinner. The matter must be examined from the standpoint of the express provisions of the Code which cover this case. The Civil P. C. now provides, what should be done in case when the applicant has not been allowed to sue in forma pauperis Order XXXIII, Rule 15 Civil P. C. provides that the applicant whose application has been refused, is at liberty to institute a suit in the ordinary manner in respect of such right provided he first pays the cost incurred by the Government and by the opposite party in opposing his application for leave to sue as a pauper. To accept the Court‑fee paid by the applicant under section 149 Civil P. C. would be to override the specific provision of H Order XXXIII, Rule 15 Civil P. C. which provides for the payment of costs of the Government and of the opposite party incurred by them in opposing the application of the applicant to sue in forma pauperis. The effect of applying section 149 Civil P. C. would be to absolve the applicant from paying the cost incurred by the Government and the opposite party. Another point which is necessary to be emphasised is that, their Lordships of the Privy Council in the case of Stuart Skinner have not laid down anywhere that the document which is presented as an application to sue in forma pauperis, is in fact not only an application, but also a plaint so that, if the application, to sue as a pauper, is rejected, the plaint still remains to be disposed of. The specific provisions of Order XXXIII Civil P. C. speak of this document only as an applica tion. In this connection, Rules 1 to 7 of Order XXXIII Civil P. C. may be perused. These rules speak of the document as an application. Rule 8 of Order XXXIII Civil P. C. makes it further clear that the application to sue as a pauper, if granted, shall be numbered and registered and shall be deemed to be the plaint in the suit. It is, therefore, clear that up to the stage of Rule 7 when the Court has to decide whether the applicant should be refused to sue as a pauper or should be allowed to so sue, the document is only an application. It is only after the applicant has been allowed to sue as a pauper that the document becomes a plaint under Order XXXIII Rule

8. If the document is treated as of a composite character that, it was an application as well as a plaint at the same time various other difficulties are likely to arise. If the application be treated as a plaint for one purpose and as an application for leave to sue for another purpose, the document, as a plaint, will be governed by Order VII Civil P. C. while the same document, as an application, would be governed by Orders XXXIII Civil P. C, It may happen that the allegations con tained in the application, do not disclose a cause of action and the Court may reject the application on that very ground. It would then follow that the rejection of that application would be an order under Order XXXIII Rule 5 (d) and therefore, would not be appealable, while the same order would be an order under Order VII, Rule 11 (a) Civil P. C. which would be appealable. This would be serious anomaly. Again Order XXXIII Rule 5 allows the Court to dismiss an application on grounds quite different from those on which a plaint is to be rejected under Order VII Rule

11. If the allegation shown in the claim is barred by any law, the plaint can be rejected while the application cannot be rejected on any such grounds under Order XXXIII Civil P. C. I have considered the Privy Council case before con sidering the case of the other High Courts in order to emphasise three points: (1) That the circumstances of the present case are quite different from the one that was before their Lordships of the Privy Council; and (2) that the language of the Rules in the present Code of Civil Procedure clearly provides, what should be done in case when the Court does not allow the applicant to sue in forma pauperis. (3) That the application presented for permission to sue as a pauper is not of composite character, that is, an application for permission to sue as a pauper and a plaint at one and the same time. I would now consider the views of different High Courts. So far as the Bombay High Court is concerned, it has held that‑ "The proceedings are completely disposed of by the refusal of the application and that, thereafter the Court has no power under section 149 to allow the Court‑fees to be paid." (A I R 1944 Bom. 63 and A I R 1943 Bom. 292). The Judgment by Sen, J. in the case reported in A I R 1944 Bom. 63 is a well considered judgment. I respectfully agree with the reasoning in that case. The head‑note of the case reported in A I R 1943 Bom. 292 in somewhat mis‑leading. This case also definitely holds that‑ "Once the Court passes an order rejecting an application under Rule 5 or refusing to allow the applicant to sue as a pauper under Rule 7 without keeping the application alive as an unstamped plaint and granting the applicant time to pay the requisite Court‑fees, the proceedings come to an end and it has no power to do so by a separate and subsequent order." The opinion of the Rangoon and Nagpur High Courts also seem to be in favour: "Once the application is rejected under Order XXXIII, Rule 7, the Court cannot, under section 149 Civil P. C. allow the Court‑fees to be paid" (A I R 1937 Rang. 185 ; A I R 1944 Nag. 357 ; A I R 1933 Nag. 237 and A I R 1929 Nag. 268). So far as the Calcutta High Court is concerned it has taken a contrary view about the point in question. In A I R 1936 Cal. 28 and A I R 1938 Cal. 730, the view that had been taken is that‑ "The Court‑fees can be allowed to be paid under section 149" but the latest view as reported in A I R 1939 Cal. 394 is that‑ "The Court‑fees cannot be allowed to be paid 'under sec tion 149 Civil P. C." There is also conflict of decision in the Lahore High Court. In A I R 1938 Lah. 41, it has been held that‑‑ "The Court‑fees can be allowed to be paid under section 149 Civil P. C." while' in A I R 1937 Lah. 151, it has been held that‑ "The Court‑fees cannot be allowed to be paid under sec tion 149 Civil P. C. with retrospective effect." It is note‑worthy so far as these two cases are concerned that, the case reported in A I R 1938 Lah. 41 does not consider the case reported in A I R 1937 Lah.

151. The judgment has been delivered by the same judge in both the cases. I would res pectfully agree with the reasoning given in A I R 1937 Lah. 151 for the view that: "That Court‑fees cannot be allowed to be paid under section 149 with retrospective effect. The Patna High Court has also taken contradictory view in A I R 1929 Pat. 637 wherein it has been held that "The Court‑fees can be allowed to be paid un4er section 149" while in A I R 1938 Pat. 120 a contrary view has been taken that. . . "Court‑fees cannot be allowed to be paid under section 149." So far as Allahabad High Court is concerned, a Full Bench (A I R 1936 All. 584) has clearly held that: Court‑fees can not be accepted under section 149 once an application has been rejected under Order XXXIII, Rule 7 Civil P. C." There is conflict of; opinion so far as Madras High Court is concerned. King, J. (A I R 1939 Mad. 360) held that: "Section 149 Civil P. C. cannot empower any Court after refusing, under Order XXXIII, Rule 7 to allow a petitioner to sue in forma pauperis to pay Court‑fees and treat his application as a plaint." I would, for the reasons given above, hold that once an application for leave to sue as a pauper, is refused, the Court cannot allow the Court‑fees to be paid under section 149, Civil P. C. The application is dismissed. A. H. Application dismissed