Report No. 27
Order XXXIII, rule 15 and "refusal"
Order XXXIII, rule 15 speaks of an order "refusing to allow the applicant to sue as a pauper". Whether this applies in cases where the application has been "rejected" under rule 5 is a matter which is not free from difficulty. It would suffice to draw attention to only a few of the decisions1-2-3 The language of the rule supports the interpretation that it is confined to "refusal" under rule 7. It is considered unnecessary to disturb the language.
1. Ganesh Prasad v. Radhe Shyam, AIR 1950 Nag 82.
2. Harindra v. Continental Bus Service Ltd., AIR 1958 Cal 182.
3. Ramzan Ali v. Satul, AIR 1948 All 244 (251), paras. 47 and 50.
Order XXXIII, rule 15A (New)
1. This is new.
2. Where the court rejects an application to sue as a pauper under Order XXXIII, rule 5 or refuses to allow a person to sue as a pauper under rule 7, the question arises whether the court is bound to give time to the pauper to pay court-fees and (on such payment) to treat the plaint as filed on the day on which the application was filed.
The matter assumes practical importance for the purposes of limitation with reference to section 3,Explanation, Indian Limitation Act, 1908, re-enacted in section 3, Explanation, Limitation Act, 1963. The position is not very clear, as will be seen from an analysis of the decisions of some of the High Courts attempted below.
Bombay.-In a Division Bench ruling1, the matter was discussed at some length and the following conclusions reached:-
(i) An application under Order XXXIII, rule 2, is required to contain the particulars required for plaints, is to be signed and verified in the same manner and is capable of being itself treated as a plaint. If it is granted, it becomes a plaint under Order XXXIII, rule 8 and is numbered and registered.
(ii) Even before deciding whether to grant an application or not, the court may at any time during the pendency of the proceedings, treat the application as a plaint and allow the applicant to pay the requisite court-fees and give up his request to be allowed to sue as a pauper, as in the under-mentioned Privy Council case2.
(iii) Even if the court decides to reject the application under Order XXXIII, rule 5 or refuses to allow the applicant to sue as a pauper under Order XXXIII, rule 7, it may treat the application as an unstamped plaint, and either before or at the time of passing the order, allow the applicant time under section 149 to pay the requisite court-fees and upon such payment within the time allowed, number and register the plaint.
But in doing so the court should have regard to the provisions of Order XXXIII, rule 15 and make the payment of costs mentioned therein a condition precedent. In all these cases, for the purposes of limitation the suit will be deemed to have been instituted on the day on which the application for leave to sue as a pauper is made.
(iv) But, once the court passes an order rejecting the application under rule 5 or refuses to allow, etc., under rule 7, without keeping the application alive as an unstamped plaint and without 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. In that situation the only remedy of the applicant is to file a regular suit under Order XXXIII, rule 15, which suit must be taken as instituted on the day it is actually filed, and the pauper cannot avail himself of the time spent in the pauper proceedings to save the bar of limitation.
This case was, however, not cited before the court (apparently), in a later Bombay case3, which held that where the application is refused under Order XXXIII, rule 7(3), the court cannot under section 149 allow the applicant to pay the requisite court-fee and treat the application as a plaint.
Calcutta.-The Calcutta decisions are not uniform. The more recent view is that when an application is rejected under rule 7, and the applicant seeks to deposit the full court-fee, the suit must be considered to have been instituted only after the payment of the court-fee. This view was taken by Edgley J.,4 dissenting from or distinguishing earlier rulings of the same High Court5-6.
Madras and Andhra Pradesh.-A number of decisions of the Madras High Court have recognised the practice of granting time while rejecting an application for leave to file a suit as a pauper, the time being granted under section 1497-8-9-10. The practice was stated to have developed out of a feeling of charity towards bona fidepauper suitors, and statutory support for this practice without first paying the costs of parties opposing the application was stated to be lacking.11
The Madras practice has been followed in Andhra Pradesh also12.
Allahabad.-The question has come up before the Allahabad High Court more than once in Full Bench decisions. In an earlier Full Bench case13, the following propositions were laid down:-
(a) While rejecting the application under rule 5, the court can under section 149 allow the applicant to pay the court-fee and treat the application as a plaint;
(b) But while refusing to allow him to sue him as a pauper under rule 7, it cannot allow him to pay court-fee and treat the application as a plaint;
(c) After rejecting the application, it cannot, by a separate and subsequent order, allow payment under section 149.
The court made a suggestion14 for amendment of the rule in these words:-
"Order XXXIII, rule 7 may well be amended so as to empower the court, while refusing to allow the applicant to sue as a pauper, to grant him time to convert the application into a plaint and pay the necessary court-fee".
The Court, however, also pointed out that under rule 15, the applicant could not be allowed to institute the suit without payment of costs, and those provisions should not be evaded. In a later Full Bench case15, it was held, that in cases where the application was still pending or even at the time of refusing to grant leave, the court could grant time under section 149 to pay the court-fee, and if the court-fees are paid within that time, the plaint would be deemed to have been filed on the date on which application to sue as a pauper was made. The Full Bench decision of 1936 was reviewed in another case16, wherein the following propositions seem to have been laid down:-
(a) An order under section 149 can be passed only when the document is before the court. Once the court has lost seisin of the case, it cannot grant time to pay court-fee under that section.
(b) But, since it often happens that pauper applications, where contested, take some time and in the meantime, the limitation for filing the suit on payment of court-fees expires, therefore, if a bona fideapplication has been filed and the court is not satisfied that the petitioner is pauper it should, before signing the order disallowing the prayer to be allowed to sue as a pauper, grant time for payment of court-fees. If an oral or written application for time for payment of court-fees is made, it is the duty of the court to pass a suitable order on the application, and if by mistake or oversight it is not done, it can correct its error later by reviewing the order.
Madhya Pradesh High Court holds17 that even if the application is dismissed, there remains the plaint, and the court can grant time under section 149 and that time can be extended also.
Lahore.-The Lahore view seems to be, that while dismissing the application to sue as a pauper, if the court asks the applicant to deposit the court-fee by a certain date, and the court-fee is so deposited, the suit would be deemed to have been filed on the date on which the application under Order XXXIII, rule 2 was first made18-19.
Patna.-Seems to hold that the time can be given at the time of dismissing the application20, but not afterwards21.
Assam.-Holds that time may be granted under section 14922, if there is a prayer to that effect.
Rajasthan.-The Rajasthan High Court has, in 1954, made an amendment to rule 15 to the effect, that nothing in rule 5 or rule 7 shall preclude the court from granting time for payment of court-fees, and upon such payment, the suit is deemed to have been filed on the day on which the original application was presented. (An earlier decision23 of Rajasthan High Court had discussed the matter, but had not expressed any final opinion on the point.)
(See also Kerala Amendment to Order XXXIII, rule 7).
3. It is considered that the Rajasthan Amendment should be adopted so as to clarify the position with the modification that the right to costs of those opposing the application should also be safeguarded24. It would be convenient to put this as a separate rule qualifying rules 5, 7 and 15. Necessary amendment is proposed.
1. Mahadev v. Bhikaji, AIR 1943 Born 292 (296, 297) (Broomfield and Lokur JJ.) (case-law reviewed).
2. Skinder v. Orde, (1878-1880) 6 IA 126: ILR 2 All 241.
3. Vaman Rao v. Pran Lal, AIR 1944 Born 63.
4. Biswanath Das v. Khjeerali, ILR (1939) 2 Cal 68: AIR 1939 Cal 394.
5. Jagadishwaree v. Thinuari, ILR 62 Cal 711: AIR 1936 Cal 28.
6. Kalidasi v. Smantosh Kumar, ILR (1939) 1 Cal 112: AIR 1938 Cal 730 (reviews case-law).
7. Krishna v. Janki, AIR 1935 Mad 878.
8. AIR 1934 Mad 467.
9. Anasuyamma v. Subbareddi, AIR 1943 Mad 646.
10. Brahamaramba v. Seetharamayya, AIR 1947 Mad 405.
11. Ganga v. Suraiya, AIR 1950 Mad 50 (51).
12. Sulemani Begum v. Ghulam Mohammed, AIR 1960 AP 381 (382) (DB).
13. Chunnamal v. Bhagwant, ILR 1937 All 22: AIR 1936 All 584.
14. AIR 1936 All 584 (589).
15. Devendra Kumar v. Mahanta Raghuraj, AIR 1955 All 154 (158), para. 24 (FB).
16. Kajap Nath v. Shyama Nand, AIR 1955 AU 159 (FB).
17. Bhanu v. Daluna, AIR 1959 MP 169.
18. Ram Het Gir v. Banwari Lal, AIR 1938 Lah 41 (42).
19. For earlier cases, see ILR 17 Lah 831: AIR 1937 Lah 151.
20. Mathura Singh v. Sudama Devi, AIR 1954 Pat 170.
21. Bank of Bihar v. Ram Chander, AIR 1929 Pat 637 (639).
22. See AIR 1961 Ass 113.
23. Bhairu Dan v. Ratan Lal, ILR (1952) 2 Raj 497 (508).
24. Cf. Mahadev v. Bhikaji, AIR 1943 Born 292 (296).