Mohd.Sidiq Bagoo vs State of J & K

The facts material for disposal of this civil 1st Miscellaneous Appeal may be precisely stated. The plaintiff (petitioner herein) a boatman came to

be engaged by the defendant Food & Supplies Department (respondent herein) for conveying food grains by boat from Gulab Bagh to Hanuman

Ghat, Amira Kadal, Srinagar. The respondent claiming excessive payment in respect of carriage charges appears to have initiated recovery against

the petitioner and denial of liability by him resulted in a dispute between the parties, which landed them in litigation initiated by the petitioner by

medium of an application seeking permission for institution of civil suit as a pauper under rule 3 order XXXIII Civil procedure Code (for short

CPC) which is reproduced hereunder:

Presentation of application. 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 person:

(Provided that, where there are more plaintiff thanone, it shall be sufficient if the application is presented by one of the plaintiffs).

It is manifest from language of the rule that application for leave of the court to sue as a pauper has to be filed by the applicant in person. No

doubt, the rule does admit exception by way of an exemption but it is not relevant for disposal of this case, for, it is neither pleaded nor is attracted

in the case on hand. The rule makes it very clear that failure of a party to there to its mandate renders the application liable to rejection in terms of

rule 5 order XXXIII. The petitioner, not being alive to the said rule moved an application through his advocate which virtually became a casualty of

ignorance of law, thus rejected by order dated 10101984. This order is impugned through this appeal.

It is appropriate to notice that Act XI of 1983 (for short Act XI) has come into force on 15081983. By this Act, rule 15A came to be inserted

into order XXXIII which is extracted for facility of reference:

15A. Grant of time for payment of court fee. 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 a payment of the costs referred to in suchrule (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.

Examining the impugned order in isolation of rule 15A, there appears nothing bad about it, but fact of the matter is that the Act XI has come into

force on 15081983 whereas the impugned order rejecting the application was passed on 10101984. Thus the Act XI had already occupied the

field eve during the pendency of the suit. In this background, it is to be seen as to whether the mode prescribed under rule 15A could have been

said good bye and to appreciate the controversy in its right perspective it is pertinent to appropriate the ambit of rule 15A.

This rule clothes the court with the power to grant time to the applicant to pay the requisite court fee within a period to be stipulated, which may

also be extended from time to time. It provides further that upon payment 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.

It needs to be noticed that consequence of rejection of an application under rule 5 effects interests of a party very adversely, as is true of the

petitioner herein who has approached the court in May 1983. Two decades are about to lapse but his suit is yet to be formally admitted and such

abnormal delay is attributable to nothing other than a technical defect which could have been avoided had the court taken recourse to rule 15A.

which takes care of such contingencies. A careful reading of the rule quite obviously leads to the conclusion that intention of the legislature is to

save a litigant form harm and injury likely to result from fall out of a technical defect. Thus the rule aims at advancing cause of justice, therefore, I

hold that while rejecting an application under rule 5 or refusing an application under rule 7. it is obligatory upon the court to exercise the power

under rule 15A to grant an opportunity to a party to pay the requisite court fee.

In the case on hand, opportunity has not been granted to the petitioner and examining such failure in view of the aforementioned observations I

am left with no option but to allow this appeal with a direction to the learned Addl. District Judge Srinagar to grant time to petitioner to pay the

requisite court fee. Needless to mention that nothing prevents the court to pass appropriate orders in accordance with law in case the petitioner

fails to avail of the opportunity. Counsel for the petitioner is directed to cause appearance before the court of Learned Addl District Judge,

Srinagar on 13052000 record be transmitted forthwith.