Jugal Kishore Vs. Dhanno Devi  INSC
136 (13 August 1973)
CITATION: 1973 AIR 2508 1974 SCR (1) 360 1973
SCC (2) 567
Civil Procedure Code., Order 33, Rule 2 and
3, Order 7 and 8--Sec. 149 Civil Procedure Code-Pauper application subsequently
withdrawn-Enlargment of time by Court for payment of court fee-Subsequent
payment of court fee relates back to the presentation of pauper application and
the suit is deemed to be presented from the date of the pauper application.
The respondent, on January 1948, presented on
application under Order 33, Rule 2 and 3 of the C.P.C. for permission to sue as
a pauper praying for the relief of possession of a house to which she had an
undisputed title. On 26-2-1949, the plaintiffs pleader moved the Court for
treating the pauper application as a plaint and for giving three months time
for the payment of court fee. On default by the respondent, the court dismissed
the suit but restored the same after the plaintiff on November 12, 1949, paid
the court fee and the costs of the defendant. The appellant contended that the
application to sue as pauper being dismissed on January 18, 1949, there was no
proceeding pending before the court thereafter and, therefore, the restoration
of the proceeding and the payment of Court fee were without any authority of
law and hence the suit was barred by limitation. Assuming, it was contended
that the Court had authority to treat the application to sue as a pauper a,; a
plaint, the application had been converted into a plaint on November 12, 1949
and on that date, the suit would be barred by time. After losing in trial court
and the High Court, the appellant agitated the matter in the Supreme Court.
Dismissing the appeal, HELD:(1) Since the
suit under section 26 of the C.P.C.
may be instituted not merely by presentation
of a plaint but also in such manner as may be prescribed, the presentation of
the application by pauper u/s 33 would amount to institution of the suit.
[3-63E-F] Vijay Protap Singh v. Dukh Maran Natli Singlz and Another,  2
Suppl.. S.C.R. 675, relied upon.
(2)A suit by a pauper or a person claiming to
be a pauper must be regarded as instituted on the dale of the presentation of
the, application for permission to sue in forma pauperis. [364E-F] (3) Where
the application is granted under Order33 Rule 7 and 8, the application is
regarded as the plaint from the date ofits presentation, where before the final
disposal of the application to sue asa pauper, the plaintiff offers to pay the
court fee. treating the application asplaint, or the Court agreeing to treat it
a, a plaint enlarges the time for the payment of the court fee, the application
must' be regarded as a plaint instituted on the date when the application was presented.
[364F-H], Stuart Skinner v. William Orde, 2 Allahabad, 241 (P.C.) Devendar
KumarBharti V. Mahanta Raghttrai Bharti, A.I.R.
1955 Allahabad, 154, (F.D.), cited with
(4)In the present case, the actual order
passed by the Court on July 18, 1949 was not an order rejecting the plaint but
rejecting the application to sue is a pauper. The said order had become otiose
since the respondent did not want to Proceed as a nauper. There was, in fact,
no rejection of the plaint. U/s. 149 C.P.C.. the Court can enlarge the time for
the pavment of the court fee and the effect of the payment is as if. the court
fee is paid on the date of the presentation of the plaint. The suit must,
therefore be regarded as filed on January 2. 1949 and was within limitation. [366D-F]
CIVIL APPEAL No. 1326 of 1967 : Appeal by
special leave under article 136 of the Constitution of India from the judgment
and decree dated the 31-3-1963: of the Allahabad High Court in First Appeal No.
92 of 1955.
S.T. Desai, M. Natesan, A.T.M. Sampath and
E.C. Agarwala for the appellant.
M.C. Cliagla, Lalit Kumar Gupta and A.-G.
Ratnaparkhi, for the respondent No. 1 (a).
The Judgment of the Court was delivered by
PALEKAR, J. The appellant is the son and legal representative of the original
defendants to the suit, Kedarnath and Chanda Devi. The respondents are the
legal representatives of the deceased plaintiff, Dhanno Devi.
On January 2, 1948 Bhanno Devi presented an
application under Order 33, Rules 2 and 3 of the Code of Civil Procedure for permission
to sue as a pauper in the Court of the First Civil Judge, Kanpur. TIC plaint
part of the application prayed for the relief of possession of a house situated
in the city of Kanpur on the allegation that the house was of the ownership of
one Budhu Lal-her father. Budhu Lai died in 1918 and on his death his widow
Jumma Devi inherited the property. On Jumna Devi's death on December 26, 1935
Dhanno Devi, as the daughter, was entitled to succeed to the property. The
defendants were in possession and were falsely refusing to yield up their
possession to Dhanno Devi and hence she was required to file the suit. A very
large amount had to be paid as court fee which Dhanno Devi was not in a
position to pay and hence she prayed that permission may be given to her to sue
as a pauper. The last date for filing the suit was December 26, 1947 but as the
courts were closed for X' mas vacation the application had been presented to
the court on January 2, 1948 i.e. on the reopening of the court and thus it was
claimed the suit was within limitation.
The defendants disputed the plaintiff Dhanno Devi's
title contending that she was not the daughter of Budhu Lal.
They alsocontend ed that the suit was barred
The Trial Court negatived the contentions of
the defendants and decreed the suit. That decree was confirmed by the High
Court of Allahabad by its Judgment dated March 31, 1965 in First Appeal No.
292/1955. The present appeal by special leave is directed against the judgment
of the High Court.
Since both the courts held that Dhanno Devi
had title to the house and the defendants had none, learned counsel for the
appellant did not, rightly, press the contention with regard to Dhanno Devi's
title to the property in suit. The only point pressed before us was with regard
362 The point of limitation arises in this
way. As already stated the suit had been instituted on January 2, 1948 by an
application for permission to sue as a pauper under Order 33 C.P.C. If that
date is regarded as the date on which the suit was properly instituted then
there is no dispute that the plaintiff's suit is in time. But what happened was
that on February 26, 1949, before the question of pauperism was formally
decided by the court, the plaintiff's pleader asked for three months time to
pay the court fee on the application by treating it as a plaint. The court
granted this prayer and adjourned the case from time to time to enable her to
pay the court fee. The last date so fixed was July 15, 1949. On that day the
plaintiff did not appear, nor did she pay the court fee and consequently on
July 18, 1949 the following Order was passed by the court "Court fee still
unpaid. The applicant did not press his application to sue in forma pauperis
but offered to pay court fee. He did not do so till now.
ORDER The application to sue as a pauper is
dismissed with costs." On August 13, 1949 the plaintiff filed an
application for restoration of the case under Order 9 Rule 9 C.P.C. After
hearing the defendants the court passed an order that the plaintiff should
first pay the court fee and the costs of the defendants whereupon the
application for restoration would be considered. Ace ordingly on November 12,
1949 the plaintiff paid the court fee and the defendant's costs. By his order
dated April 15, 1950 the learned Judge held that the plaintiff had sufficient
cause for not paying the court fee in time and restored the proceeding to the
file after setting. aside the order referred to above.
When the court fee was paid on the
application i.e. on November 12, 1949, the suit would have been barred by time
because, as already stated, the last date for filing the suit was January 2,
1948. It is contended on behalf of the appellant that on the application to sue
as a pauper being dismissed on January 18, 1949, there was no proceeding
pending before the court thereafter and, therefore, the restoration of the
Proceeding and the payment of court fee were without authority of law and hence
the suit was barred by limitation. Assuming, it was contended, that the court
had authority to treat the application to sue as a pauper as a plaint, the
application had been converted into a plaint on November 12, 1949 and on that
date the suit would be barred by time.
Section 26 of the Civil Procedure Code
provides how a suit is to be instituted in a Civil Court. Every suit, as stated
in that section, &hall be instituted by the presentation of a plaint or in
such other manner as may be prescribed. On January 2, 1948 the plaintiff had
presented an application for permission to sue under Order 33 C.P.C. It was not
a suit instituted by the presentation of a plaint. But the suit was obviously
instituted in a manner Prescribed by Order 33. Rule 1 of Order 33 provides363
"Subject to the following provisions any suit may be instituted by a
pauper" The manner of such institution is provided in rules 2 and 3 which
are as follows "2. Every application for permission to sue as a pauper
shall contain the particulars required in regard to plaints in suits; a
schedule of any movable or immovable property belonging to the applicant, with
the estimated value thereof, shall be annexed thereto; and it shall be signed
and verified in the manner prescribed for the signing and verification of
pleadings." 3.Notwithstanding anything contained in these rules, the
application shall be presented to the Court by the applicant in person, unless
he is exempted from appearing in Court, in which case the application may be
presented by an authorised agent who can answer all material questions relating
to the application, and who may be examined in the same manner as the party
represented by him might have been examined had such party attended in persons
In short, according to rules 1, 2 and 3 a suit by a pauper is instituted when
the application for permission to sue as a pauper containing the necessary
particulars of a plaint is presented to the Court by the applicant in person or
by his authorized agent. In the present case it is not disputed that this was
done on January 2, 1948.
There has been a conflict of judicial opinion
on the question whether a suit could be held to have been instituted when a
petition to sue as a pauper was presented.
One view is that until permission is granted
under rule 7 of Order 33 there is no suit instituted. The other view is that
since a suit under section 26 may be instituted not merely by the presentation
of a plaint but also in such manner as may be prescribed the presentation of
the application by the pauper under Order 33 would amount to institution of the
suit. This latter view is accepted by this Court in Vijay Pratap Singh v. Dukh
Haran Nath Singh and Another.(1). In that case Vijay Pratap Singh filed a
petition for leave to sue in forma pauperis for the declaration of his title to
Ayodhya Raj. He claimed that on the death of the widows of Maharaja Man Singh,
the estate devolved on his grandfather, Ganga Dutt, who died in 1942.
The estate was 'thus ancestral property in
the hands of Ramjivan, the father of the plaintiff, who thus got interest in
the same by reason of his birth. Ramjivan was made one of the defendants to the
suit. The plaintiff's petition to sue as a pauper was rejected by the
Subordinate Judge under Order 33 rule 5(d) on the ground that the allegations
in the application did not show a cause of action. It is to be noted that the
court had not decided the issue about his pauperism because that could be done
only under Rule 7(3) after trial of the issue under rule 6. On such rejection
Ramjivan-the father applied to the court to be transposed as the petitioner but
that application was also rejected. This court held that the rejection of both
these applications was improper because, in the first case, the (1) (2)
Suppl, S, C. R. 675.
364 court had to see under rule 5 (d) whether
the, allegations made in the petition showed a cause of action and the court
had no power to enter upon a trial of the issues affecting the merits of the
claim at that stage. As regards Ramjivan's application for transposition under
Order 1 Rule 10 it was held that the application was wrongly rejected because
such an application. could have been legally entertained by the court because
the suit had already been instituted. It was pointed out that an application to
sue in forma pauperis is but a method prescribed by the Code for institution of
a suit without payment of court fee and, therefore, the suit commences from the
moment the application for permission to sue in forma pauperis, as required by
Order 33 of the Code, is presented. Dealing with the point the court observed
at page 685.
"We are also of the view that the High
Court was in error in holding that by an application to sue in forma pauperis,
the applicant prays for relief personal to himself. An application to sue in
forma pauperis, is but a method prescribed by the Code for institution of a
suit by a pauper without payment of fee prescribed by the Court Fees Act, If
the claim made by the applicant that he is a pauper is not established the
application may fail. But there is nothing personal in such an application. The
suit commences from the moment an application for permission to sue in forma
pauperis as required by 0.33 of the Code of Civil procedure is presented, and
O. 1, r.
10, of the Code of Civil Procedure would be
as much applicable in such a suit as in a suit in which court fee had been duly
paid." This Court has, therefore, finally resolved the conflict by
declaring that the suit by a pauper or a person claiming to be a pauper must be
regarded as instituted on the date of the presentation of the application for permission
to sue in forma pauperis as required by rules 2 and 3 of Order 33 Civil
As regards limitation for such a suit
instituted by a pauper. the provisions of rule 8 of Order 33 are relevant.
That rule provides "Where the
application is granted, it shall be numbered and registered, and shall be
deemed to be the plaint in the suit, and 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 (other than fees payable for service
of process) in respect of any petition, appointment of a pleader or other
proceeding connected with the suit." In view of this provision there is no
dispute that when permission to sue as a pauper is granted by the court under
rule 7 of that Order, the petition or application must be regarded as a plaint
filed on the day when, the application was presented to the court.
There is, however, divergence of opinion with
regard to the legal position arising out of an order passed under rule 7(3)
refusing to 3 6 5 allow the applicant to sue as a pauper, One view is that on
such a refusal, the suit, which was already 'instituted.
does not come to an end, because, the
application by which the suit was commenced is a composite document comprising
a plaint and a prayer to sue in forma pauperis and, therefore, when the latter
alone is refused, the suit does not come automatically to an end. The
proceedings can still continue if court fee is paid on the application treated
as a plaint, in which case the date for limitation would be the date on which
the application was presented to the court. See, for example, Bhanu v. Dalmia
and Co.(1) The other view is that when the application to sue as a pauper is
refused, that puts an end to the application, which is not a composite
document, and the court has no power thereafter to permit the defunct
application to be revived as a plaint by accepting court fee. See, for example
Chunna Mal v. Bhagwant Kishore.(2). How far this view can be sustained after
this Court's decision in Vijay Pratap Singh v. Dukh Haran Nath Singh, referred
to above, is a matter which we are not called upon to decide in the present
Nevertheless, it must be noted that there is
almost a concensus of opinion that where, before the formal disposal of the
application to sue as a pauper, the plaintiff offers to pay the court fee
treating the application as his plaint, or, the court, agreeing to treat it as
a plaint, enlarges the time for payment of the court fee, the application must
be regarded as a plaint instituted on the day when the application was
presented. See : Stuart Skinner v. William Orde(3), Devender Kumar Pharti, v.
Mahanta Raghuraj Bharti(4). This proceeds on the view that the court has power
to permit the application to sue in forma pauperis to be treated as plaint and
to extend the time, if necessary, for payment of court fee on the document, in
view of the fact that it contains all the necessary particulars for the purpose
of a plaint.
In the appeal before us the plaintiff had
offered to pay court fee on the application regarded as a plaint and the court
had agreed that this may be done. There is nothing in Order 33 Civil Procedure
Code which prevents an applicant from telling the court that though he had prayed
for permission to sue in forma pauperis, he is now in possession of funds and
would like to pay the Court fee on the application treating it as a plaint.
Thereby, in effect the applicant withdraws his prayer for permission to sue as
a pauper and requests the court not to apply the provisions of Order 33 to him.
If the court agrees, and, generally in practice the court does agree, to treat
the application as a plaint, in view of the fact that it contains all the
necessary particulars required in a plaint, there could be no objection to the
suit being treated as one instituted by, the presentation of a plaint. In the
present case, as already stated. even before, the issue regarding pauperism
came for trial and decision the plaintiff offered to pay the requisite fee on
the application treating it as a plaint and the court agreed to that course.
The plaintiff prayed for three months time to Pay the court fee by her
application dated February 26, 1949 and the court acceded to that request and
adjourned the proceedings from time to time, on several (1) A.I.R. 1959 M. P.
(2) A.I.R. 1936, Allahabad, 584.
(3) 2 Allahabad, 241 (P. C.) (4) A. I.R. 1955
Allahabad, 154 (F. B.) 366 occasions. The plaintiff was finally granted time to
pay the court fee until July 15, 1949 but unfortunately the plaintiff did not
attend the court on that day, nor was the court fee paid. Hence the court
passed the Order dated July 18, 1949 expressly saying that the application to
sue as a pauper is dismissed with costs.
Now the above Order dismissing the
application to sue as a pauper was, to say the least, otiose. The plaintiff had
already withdrawn his prayer for permission to sue as a pauper and the court
had agreed to the withdrawal of that prayer and to treat his application as a
plaint. From that time onward the suit which had been properly instituted could
only proceed on the basis that the suit was as good as a suit filed on a
plaint. And in such a case it was open to the court under section 149 C.P.C. to
order the plaintiff to pay the deficit court fee and enlarge the period to pay
such court fee. If the court fee is not paid, the only order that the court
could have passed was to reject the. plaint under Order 7 rule 1 1 (c) C.P.C.
The rejection of a plaint is a decree and appealable as. such. The question,
therefore, is whether in this case there was any rejection of the plaint for
non-payment of the deficit court fee,.
The actual order passed by the court on July 18, 1949 does not show that the plaint had been rejected. What the court did was to
reject the plaintiff's application to sue as a pauper which was a redundant
order because the prayer to sue as a pauper had been withdrawn much earlier and
the application to sue as a pauper, as such, did not survive for being dismissed
on July 18, 1949. In law, therefore, there was no rejection of the plaint in
the suit and, therefore, the suit continued to remain on the file. While it
continued on the file the plaintiff applied to the court and paid the court fee
,as ordered. On the acceptance of the court fee by the court, the document,
namely, the plaint would by virtue of Section 149 C.P.C., have the same force
and effect as if such fee had been paid in the first instance viz. on the date
it was presented to the court i.e.
January 2, 1948. In our view
therefore, the suit must be regarded as properly filed on January 2, 1948; and that being admittedly the last date on which the suit could have been legally
filed to avoid the bar of limitation, the plea of limitation made on behalf of the
defendants must fail.
In the result the appeal fails and is
dismissed with costs.
S.B.W. Appeal dismissed.