Ajudhia Nath Kapoor vs Union of India

(1) This is a petition for revision against the order of the Subordinate Judge 1st Class, Delhi, dated 3-6-57, dismissing the application for stay of the proceedings on the ground that the same was not maintainable under any provision of law.

(2) It appears that the petitioner was an employee in the Railway Department and he brought a suit against the Union of India on 10-8-50 in the Court of the Civil Judge, Saharanpur, for the recovery of Rs. 50,000/-as damages for the loss caused to him on account of withholding his promotion etc. This suit was decreed, but an appeal was filed against the same by the Union of India, which is still pending in the Allahabad High Court. It may be mentioned that the petitioner realised the decretal amount from the Union of India, but on furnishing security for restitution in case the appeal was decided against him. This amount, according to the petitioner, had been kept as security with the Bank, which had stood surety for him.

The petitioner also filed another suit in forma pauperis at Saharanpur on the same of action, but for a subsequent period. This second suit, on the application of the petitioner, was stayed to await the decision of the appeal in the Allahabad High Court. The present suit was filed by the petitioner in forma pauperis at Delhi on the same cause of action, but for a different period. In this suit, the petitioner filed an application praying that the proceedings be stayed till the decision of the appeal by the Allahabad High Court.

(3) The learned trial Judge rejected this application, as mentioned above.

(4) Learned counsel for the petitioner submitted that the present application was filed u/s 151 of the CPC and the same was maintainable under this section read with Ss. 10 and 141, Civil Procedure Code. He further submitted that the ability of the petitioner to pay court fees was dependent on the fate of the appeal in Allahabad High Court. Since the same questions were substantially in issue in the two suits, the present suit, according to him, should have been stayed, as was done in the second suit filed at Saharanpur.

(5) After hearing the counsel for the parties, I am of the opinion that there is no merit in this petition. The first point to be determined in the present suit is whether the petitioner was a pauper on the date when he put in the application for permission to sue as a pauper. If he was not a pauper on that date, then he has to pay the requisite court-fee on the suit and if he were a pauper, then the suit would proceed without the payment of such court-fee. An enquiry into his pauperism on the relevant date has to be made, in the first instance. I do not see any reason as to why this enquiry should be stayed, because his pauperism has to be decided with regard to a particular date, namely, the date on which he filed the present suit. It will be difficult to determine this matter after a number of years when the appeal in the Allahabad High Court is decided. This enquiry cannot, obviously, be postponed till then. The trial Judge had refused to stay these proceedings and it cannot be said that he had either no jurisdiction to decide this matter or that he had, in any way, acted illegally or with material irregularity in the exercise of his jurisdiction.

(6) It cannot be said that the ability of the petitioner to pay court-fee is solely dependent on the decision of the appeal in the Allahabad High Court, because he may be possessed of other property and be thus in a position to pay the necessary court-fee.

(7) Section 10 of the CPC is not applicable till the matter of pauperism is decide, in the first instance, and this application is numbered and registered as a suit. At that stage, the petitioner, if so advised, can file an application for the stay of the suit. The enquiry with regard to the pauperism of the petitioner, in my opinion, should not be stayed.

(8) In view of what I have said above, this petition fails and is consequently, dismissed. There will, however, be no order as to costs in this Court.

(9) Petition dismissed.