Makarand Krishnaji Joshi vs Sadashiv Vithal Joshi

The petitioner filed a Civil Suit in he Court of the Civil Judge, Senior Division, Sangli on 2nd Nov. 1981 for recovery from the respondent of a sum of Rs. 17,516.49 p. together with interest. The petitioner made an application being Miscellaneous Application No. 179 of 1981 for being permitted to file the suit in forma pauperis. It seems that this application took a very long time for disposal. The application was fixed for hearing on 5-9-1985. On that day the petitioner was absent. It is his case that he had applied for an adjournment on the ground that he was required to be elsewhere for his business, but he learnt on that day that one of his relatives was seriously ill and was admitted to hospital. Hence he was required to attend on him at the hospital.

In his absence the learned Civil Judge, Junior Division, Sangli dismissed his application for default.

The petitioner applied for setting aside the order of dismissal for default, under Order IX Rule 13 of the Code of Civil Procedure. This application, however, was dismissed. Thereafter the petitioner preferred an appeal from this order of dismissal for default being Misc. Civil Appeal No.180 of 1987 before the Additional District Judge at Sangli. The District Judge by his order dated 28-11-1988 has dismissed the appeal with costs and has confirmed the order of dismissal passed by the trial Judge. In the present writ petition the petitioner has challenged these orders.

Under Order XXXIII, Rule 7(3) of the CPC the Court may either allow or refuse to allow the applicant to sue as a pauper. Under Order XXXIII, Rule 15 an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right as set out in that rule. In the present case the petitioner submits that he was in a position to pay court fees at the date of dismissal of his appeal and he should have been given time to pay the requisite court fees for the purpose of registering his suit. In this connection he relies upon Order XXXIII, Rule 15A, which provides as under:

15A. Nothing contained in Rule 5, Rule 7 or Rule 15 shall prevent a court, while rejecting an application under Rule 5 or refusing an application under Rule 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court or extended by it from time to time, and upon such payment and on payment of the costs referred to in sub-rule (2) of Rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.

The Appellate Judge, however, has not applied his mind to the provisions of Rule 15A. He has observed that the plaintiff can file a separate suit on the same cause of action. He has not taken into account the fact that the original application for being allowed to sue in forma pauperis was filed as far back as in Nov. 1981 and the suit was also filed in 1981. The suit is for the recovery of a money claim. On the date of the appellate order his claim was clearly time barred in case the petitioner had to file a fresh suit. Looking to the long delay in the disposal of his application to sue in forma pauperis, the District Judge ought to have taken into account the provisions of Rule 15A and should have granted time to the petitioner to pay the requisite court fee.

It is contended by Mr. Angal, learned advocate for the respondent that the provisions of O.33 Rules 15 and 15A apply only if the application to sue in forma pauperis is dismissed on merit. He contends that when the application is dismissed for default, these rules do not come into operation. There is, however, no reason to interrupt Rules 15 and 15A as applying only to cases where the application is decided against the petitioner on merit. Every application for being permitted to sue in forma pauperis, if it is rejected for whatever reason would entail payment of court fees by the petitioner for filing a suit. Rule 15 protects this right to institute a suit in the ordinary manner. Rule 15, therefore, applies to an order refusing the application, whatever be the reason for such refusal. Rule 15A makes it clear that the provisions, inter alia, of rule 15 shall not prevent a court from granting time to the applicant to pay the requisite court fee within such time as may be fixed by the court. Upon such payment the suit shall be deemed to have been instituted on the date on which the application was made. The contention, therefore, of Mr. Angal must be rejected.

In the premises, the order of the 3rd Additional District Judge, Sangli dated 28-11-1988 is modified in the following manner:

The petitioner shall pay the requisite court fee within either weeks of receipt of this writ in the trial court. Upon such payment the suit shall be deemed to have been instituted on the date on which Application No. 179 of 1981 to sue in forma pauperis was presented.

The trial court to intimate to the petitioner forthwith the receipt of the writ.

The costs of he proceedings in application No. 179 of 1981 and the appeal shall be costs in the suit.

The rule is made absolute accordingly.

In the circumstances of the case will be no order as to costs.

Order accordingly.