P L D 1961 (W (PLP)

ORTCHESON, J.

The facts of this case are that one Muhammad Shafi filed a regular first appeal against a decree in favour of Abdul Aziz respondent. With the memorandum of appeal he presented an application for permission to appeal in forma pauperis. The case came up before the learned Chief Justice who, by order dated the 22nd of February 1961, dismissed the said application as time‑barred. At the hearing learned counsel for the appellant stated that he intended to apply for extension of time under section 5 of the Limitation Act, but the learned Chief Justice remarked that he saw no reason to extend the time. Learned counsel then made an application under section 149 of the Code of Civil Procedure (hereinafter referred to as the Code) to be allowed to make up the Court‑fee. The learned Chief Justice observed that if learned counsel's assumption that the memorandum of appeal is to be treated as an appeal be correct, the appeal is within time and the application under section 149 of the Code can be granted.

2. The learned Chief Justice then referred to certain authori ties, namely, Mst. Asmat Begum v. Mst. Husain Jan (P L D 1956 Pesh. 5); Mst. Kanwal Shri v. Babu Lal (A I R 1937 Lah. 819) and Nellavadivu Ammal v. Subramania Pillai (A I R 1918 Mad. 1039), and made the following observations:‑-- "Under Order XLIV, rule 1, a person who is unable to pay Court‑fee `may present an application accompanied by a memorandum of appeal' and the provisions relating to suits by paupers shall apply in so far as those provisions are applicable. Now, Order XXXIII does not provide for any time to be given for the payment of Court‑fee in the event of dismissal of the appli cation, but under rule 15, the applicant shall be at liberty to insti tute a suit in the ordinary manner provided he first pays the costs incurred by the Provincial Government or the opposite‑party. If this provision is applied to appeal in so far as it is applicable, then after an application has been dismissed, the applicant should be at liberty to institute an appeal in the ordinary manner as he institutes a suit. I do not think that an argument can be reason ably built on the mere provision in Order XLIV, mile 1, that an application for being allowed to appeal as a pauper should be accompanied by a memorandum of appeal. If the object of this provision had been to keep the memorandum of appeal intact after the application had been dismissed, there should have been an express provision unlike the one in rule 15 of Order XXXIII, that it shall not be necessary to institute a fresh appeal if the. Court permits the appellant to make up Court‑fee under section 149, C. P. C. An instructive argument on this point will be found in Vertannes v. Lawson A I R 1935 Rang.

336. In order that this point may be decided afresh and more authorita tively than it has been decided by a Bench of this Court and another Bench of the Lahore High Court, this particular point should be heard by a Division Bench."

3. The question before us therefore is whether, after an application for leave to appeal in forma pauperis has been dis missed, time can be allowed to the applicant sander section 149 of the Code to pay the Court‑fee on the memorandum of appeal. The first point calling for comment is that it is not, strictly speak ing correct to speak of the "dismissal" of an application to sue in forma pauperis. Such an application can fail at two different stages. Order XXXIII, rule 5 of the Code lays down that if certain conditions set out in clauses (a) to (e) of the rule are not fulfilled, the Court shall reject the application. If it is not so rejected, rule 6 provides that the Court shall give notice to the opposite‑party and the Government Pleader of the date fixed for receiving such evidence as the applicant may adduce in proof of his pauperism and any evidence which may be adduced in disproof thereof. Rule 7 lays down that on the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses produced by either party, may examine the applicant or his agent, and shall hear any arguments which the parties may desire to offer on the question whether on the face of the application and of the evidence (if any) taken by the Court the applicant is or is not subject to any of the prohibitions specified in rule

5. When the above formalities have been complied with clause (3) of rule 7 provides that the Court shall then either allow or refuse the application to sue as a pauper.

4. The distinction between the rejection of an application under rule 5 and its refusal under rule 7 is of considerable impor tance since it has been held that the powers of the Court under the two rules are by no means identical. In Chunna Mal v. Bhagwant Kishore (A I R 1936 All. 584), a Fall Bench of the Allahabad High Court laid down that where an application for permission to sue as a pauper is rejected under Order XXXIII, rule 5 of the Code, the Court, while rejecting the application, can under section 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 site as a pauper under Order XXXIII, rule 7 (3), then the Court cannot give such permission. It was further held that after the application has been rejected under Order XXXIII, rule 5, the Court cannot by a separate order allow the applicant to pay the requisite Court‑fee under section 149 and treat the application as a plaint.

5. The view of the Lahore High Court on the question of whether, while refusing an application under Order XXXIII, rule, the Court can allow Court‑fee to be made up, is not uniform. In Alopi Prashad v. Mst. Gappi (A I R 1937 Lah. 151) a Division Bench of which Abdul Rashid J. was a member answered the question in the negative, while in Ram Het Gir v. Banwari Lal (A I R 1938 Lah. 41), another Division Bench, of which Abdul Rashid, J. was again a member, held that where there is a simultaneous order to pay Court‑fee by a certain date and the fee is so paid, the suit must be held to have been filed When the application to sue as a pauper was made. No authority of the Lahore High Court on the question of whether such an order can be passed under Order XXXIII, rule 5, has come to my notice, but it is obvious that, if time can be given to make up the Court‑fee when an application is refused under Order XXXIII, A rule 7, of the Code, it can a fortiori be granted in the case of the rejection of an application under rule

5. In Alopi Prashad's case, however, the learned Judges pointed out that cases dealing with applications for leave to appeal in forma pauperis stand on an entirely different footing from an application for leave to sue in forma pauperis which distinction has been emphasized in Mahant Divil Dos v. Mahant Sundar Dos (I L R 3 Lah. 35), the reason given being that in the former the plaint is an integral portion of the application, while in the latter the memorandum of appeal is a separate document. It was consequently held that on payment of the Court‑fee within the time allowed the memo randum of appeal has the same force and effect as if such fee had been paid in the first instance. With great respect, therefore, I am of the view that far from I there being an exact analogy between the provisions of Order XXXIII and those of Order XLIV, there is an important distinction between them. I further respectfully agree with the view laid down Nellavadivu Ammal's case that the dismissal of an application for leave to appeal as a pauper leaves the memorandum of appeal accompanying that application undisposed of ; that the memo randum, though untampted is not a nullity and can be validated with effect from the date of presentation by the supply of the requisite stamp within a time fixed by the Court with reference to Order VII, rule 11 (c) and that an Appellate Court has consequently power ender section 149 of the Code, where dismissing an application for leave to appeal as a papuer, to grant time to the applicant to pay the requisite Court‑fee on the memorandum of appeal. I further agree that if the Court‑fee is paid within the time fixed, the appeal will be exempted from the operation of the limitation rude. It is, however, important to add that the above view presupposes that the memorandum of appeal is accompanied by copies of the decree and judgment appealed from. Although not explicitly stated in Order XLIV itself, it is well settled that rule I of that Order is subject to the provisions of Order XLI, rule 1, clause (1) of which requires the memorandum of appeal to be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. Reference may be made in this connection to Mst. Shahzadi Begum v. Alakh Nath (A I R 1935 All. 620 (21)), in which a Full Bench of the Allahabad High Court pointed out that an appeal can only be preferred from a decree and that when the copy of the decree is not filed, no appeal can be considered to be pending.

8. The learned Chief Justice has also referred to R. R. Vertannes v. R. G. B. Lawson (A I R 1935 Rang. 336). It is true that in that case Mosely. J. expressed the opinion that when an application for leave to appeal in forma pauperis is dismissed, the appeal does not subsist and the applicant cannot be allowed to proceed with the appeal on payment of Court‑fee. That opinion was, however, in the nature of an obiter dictum, and moreover appears to the to be somewhat tentative. The case was decided on a different point. The applicant had filed a suit for Rs. 15,000, damages for malicious prosecution. On the dismissal of his suit he applied for leave to appeal in forma pauperis against the decree, and when that application was rejected under Order XLIV, rule

1. The asked for an opportunity to be allowed to amend his memorandum of appeal by reducing the amount claimed. Mosely, J. held that this could not be permitted and, with great respect, I agree with him.

9. With the greatest respect I am of the opinion that the view expressed by the High Courts of Madras and Allahabad to which I have referred is the correct one, and that the decision in Nellavadivu Ammal's case does not lay down good law.

10. The case will now be returned to a Single Bench for decision in the light of the above findings. ABDUL AZIZ KHAN, J.‑

I agree. K.M A. Case remanded.