Rambhaben Lalchand vs Kothari Narbheram and Others

Chhatpar, J.—This revision application is to revise an order of the Civil Judge, Senior Division, Rajkot, which virtually sets aside a prior order of registering a plaint and ordering summons to issue to the Defendants. The applicant had filed an application to bring a suit in forma pauperis against the opponents who were alleged to be trustees and from whom she claimed an account as beneficiary valued at Rs. 11000/ -. This application was filed on 5-2-1951. The Court went into the question of pauperism and dismissed the application on 10-12-1951 with costs of the opponents in one set. On 20-12-1951, the applicant presented an application tendering Rs. 620/- as Court-fee on the plaint and a further amount of Rs. 10/- as process fee and prayed that the former application in the pauper proceedings be treated as a plaint and summons be issued. The Court thereupon passed an order recorded in fresh proceedings that the plaint has been scrutinised and it should be registered and summons issued to the Defendants; court-fee stamps were accordingly cancelled. This order was passed on the same day i.e. 20-12-1951; but it seems that the pauper application in the prior proceedings was not in fact brought into the fresh record prepared for the new case which was registered as suit No. 829 of 1951. Subsequently, it appears, the Plaintiff on 12-1-1952 filed copies of the pauper application in the fresh suit making good the irregularity.

When the summons were issued to the Defendants opponents, they filed an application objecting to the procedure contending that the pauper application could not be treated as a plaint, as it was rejected and as the Court had not allowed any time to pay court-fees. They further contended that the suit could not be filed without first paying the costs of the opponents in the pauper application as required by Order 33, Rule 15, Code of Civil Procedure. A rejoinder to this application was filed by the Plaintiff justifying the procedure, and as regards costs, contending that the Court had not taxed them, so that she was not in a position to deposit the amount but would deposit it when it was ascertained. On 30-02-1952 the Plaintiff did deposit in Court a sum of Rs. 30/ - as tentative costs, although the costs were not ascertained as they should hare been done in a memo of taxation attached to the original order of dismissal of the pauper application. The trial Court heard the advocates of the parties and held that the Plaintiff could not file the present suit against the Defendants by merely presenting the application dated 20-12-1951 attaching thereto the court-fees. It, therefore, ordered that the papers with the cancelled stamps be returned to the Plaintiff and she may file a suit in the ordinary way by presenting a fresh plaint with due court-fees on condition that she first pays the costs of the pauper application to the other side. It is to revise this order that the present revision application has been filed.

I have heard the learned advocates for the parties. The point is purely a technical one Mr. Mankad, the learned advocate for the Plaintiff, is agreeable that the present suit should be considered as having been filed on 20-12-1951, when the Plaintiff made the application supplying the necessary court-fees, as he says, there is no question of limitation, the Defendants being trustees. He says that he does not want the pauper application to be treated as a suit from the date when it was filed i.e. 5-2-1951, but he contends that the Plaintiff''s application dated 20-12-1951 with the prayer contained therein along with the court-fee stamps supplied and the consequent order of the same date of acceptance by the Court as a fresh plaint and which was registered as a separate suit and process issued to the Defendants must be construed as tantamount to filing a fresh suit and if there is any irregularity in the form of the plaint, that is a matter which could be are medied at any moment by the necessary amendment. He strongly argues that the Court after having registered these proceedings as a suit could not return the papers and ask the Plaintiff to file a fresh suit. At the most the Court should have asked the Plaintiff to make good the irregularity by filing an amended plaint duly signed without the prayer seeking permission to sue as a pauper.

The learned Civil Judge has relied upon the case of- Mahadev Gopal Savant Vs. Bhikaji Vishram Chavan, . In that case an application to file a suit as a pauper was filed on 18-3-1940 to recover Rs. 218/- due to him on a promissory note dated 23-3-1937; his claim was then in time, the application to sue as a pauper was dismissed on 15-4-1940, when a suit for enforcement of the claim on the promissory note was time barred. On the same day the applicant made an application requesting permission to file a suit that day on payment of 4 annas court-fee and to pay the balance of the court-fee in 7 days. The Court accepted this application and passed an order granting time and the court-fee was paid within the time allowed. Then the applicant wanted the suit to be deemed to have been instituted on the day on which he made the application under Order 33, Rule 2, Code of Civil Procedure, for permission to sue as a pauper, i.e., on 18-3-1940. The trial Court Judge held that it could not be done and so he dismissed the suit as time barred. This order was upheld by the High Court. In the present case, the question'' of limitation does not seem to arise and what is more the Plaintiff''s advocate is prepared to admit that for the purpose of limitation the applicant''s suit should be deemed to have been instituted on 20-12-1551 when the court-fee was tendered with the application and accepted by the Court. In fact that was the intention of the Plaintiff. The Bombay case has, therefore, no application to the present case. On the contrary, there are observations therein which seem to support the Plaintiffs case. It was pointed out that the application for leave to sue as a pauper contained all the information required to be given in the plaint and was verified. It was thereafter observed that the application made on 15-4-1940 was really the institution of a suit in the ordinary manner as contemplated by Order 33 Rule 15 CPC Proceeding further, their Lordships referred to the Privy Council case of-Skinner v. Orde 2 All 241 (B), wherein it was observed:

In our judgment, ... the document mentioned as an application for permission to sue as a pauper in Order 33, Rule 2, Code of Civil Procedure, which contains all the particulars that the law requires to be given in a plaint and in addition a prayer that the Plaintiff might be allowed to sue as a pauper, is a plaint required to be filed in a suit, etc.

In-Alopi Prasad v. Mt. Gappi AIR 1937 Lah 151 (C), Abdul Rashid J. described an application to sue in forma pauperis as a potential plaint, which may at any time be converted into a plaint by payment of necessary court-fees. But the Bombay High Court was of the opinion that if once the Court passes an order rejecting the application, the only remedy for the applicant is to file a suit under Order 33, Rule 15; in that case for the purpose of limitation, the suit must be taken as instituted on the day it is actually filed, and he cannot avail himself of the time spent in the pauper proceedings to save the bar of limitation. In the present case such suit was instituted, although in an irregular manner, on 20-12-1951 when the Plaintiff filed the application submitting court-fee stamps and praying that her application in the former proceedings may now be considered as a fresh plaint and which is accepted by the Court in the order of the same date wherein it is specifically mentioned that the plaint had been scrutinised and had been registered as a suit and further order of issue of summons to the Defendant is also made. The only irregularity was that the pauper application was not bodily taken out from the original pauper proceedings and incorporated in the record of the fresh suit filed or that the Plaintiff was not called upon to supply a fresh plaint duly signed and verified. This is an irregularity which does not go to the essence of the matter and can be remedied by an appropriate order.

The second objection that the Plaintiff had not paid the costs of the Defendants is met, firstly, by the fact that the costs were not and has not as yet been taxed as they should have been, and secondly, it has been held by the Bombay High Court in the case of- Umabai Shankar Borgaonkar Vs. Shankar Hari Borgaonkar, , that failure to comply with the condition in Order 33, Rule 15, as to prior payment of costs is an irregularity in the initial procedure which does not affect the inherent jurisdiction and competence of the Court to entertain the suit and therefore it may be waived. The learned Judge in that case pointed out the distinction between inherent want of jurisdiction or competence of the Court and irregularities in the initial procedure, relying upon the observations of the Privy Council in the case of Ledgard v. Bull 9 All 191 (E). I am in full agreement with the views of the learned Judges of the Bombay High Court. To hold otherwise that the Court would have no jurisdiction to accept presentation of a fresh plaint unless and until the Plaintiff had paid the costs of the prior pauper application might work grave injustice to the Plaintiff in cases where the Court delays the taxation of costs and the claim of the Plaintiff becomes time-barred in the meantime. This would result in an irreparable injury, which could not have been intended by the Legislature. I am therefore of the opinion that the provisions contained in Rule 15 of Order 33 Code of Civil Procedure, give liberty to file a suit in the ordinary manner provided that the Plaintiff first pays the costs ordered. But the inherent jurisdiction of the Court to entertain the suit by the pauper is not affected and the failure of the Plaintiff to pay costs prior to the institution of the suit can be waived in appropriate cases. In the present case the Plaintiff was not in a position to know the costs. Nevertheless she has deposited the costs which might approximately amount to the costs of the opponents and the Government Pleader to show her bona fides. Under the circumstances, I am prepared to waive this irregularity.

I set aside the order of the trial Court and direct that it should call upon the Plaintiff to file a formal plaint duly signed and verified in the record of the suit, copies of which may be served on the Defendants in the ordinary course and the case proceeded with in accordance with law. I also order the trial Court to assess the costs awarded to the Defendants in the pauper application and attach a memo thereof to the order dismissing the pauper application. If there is any deficiency, the Plaintiff should be ordered to deposit the same within a time to be fixed by the Court. This revision application is therefore allowed. In view of the peculiar circumstances of the case, I make no order as to costs.