V.K.Gandotra vs New Bank of India

Shri V. K. Gandotra filed as application for leave to sue as pauper, which application was resisted by the defendantBank. Learned Single Judge

who tried the case framed issues regarding maintainability of the suit and also about pauperism of the plaintiffapplicant and ultimately on May 3,

I979 decided the same against him. In Letters Patent Appeal the Division Bench of this Court on March 1, 1991 partly allowed the appeal holding

that the Court has jurisdiction to hear the case but decided that the plaintiff is not an indigent person and grante him two months time to pay the

requisite court fee on the claim preferred by him Plaintiff m accordance with the said order has deposited the court fee In this application

defendantBank has taken a plea that the plaintiff has not presented the plaint in accordance with Order 33 Rule 1, C. P. C and his earlier

application filed cannot be treated so and has prayed' for termination of the proceedings.

2 Plaintiff lias filed objections stating therein that upon payment of Court fee as per direction of the Court and as per provisions of Order 33 Rule

15A. C. P. C. the application earlier filed by him under Order 33 for permission to sue in forma paupris should be deemed to be a plaint and there

was thus no requirement of law to file a fresh plaint.

I have heard the learned counsel for the parties. Order 33 C. P. C. deals with suits filed by indigent persons. Rule 1 relates to a suit to be

instituted by such person. Then rules 2 & 3 provide mode for presentation of such application. Rule 10 deals with a matter when the plaintiff

succeeds in the suit and permitted to sue as an indigent person. Rule 11 provides the procedure where the indigent person fails in his suit. Both

these rules 10 & 11 treat the indigent person as plaintiff, According to Rule 11 when the plaintiff fails and is not treated as indigent person the court

is required to order him to pay the court fee which would have been paid by him if he had not been permitted to sue as an indigent person The

Division Bench of this Court in Letters Patent Appeal has passed the following operative order:

In the result the appeal is partly allowed holding that this court has jurisdiction but the appellant is not an indigent person within the meaning of

order XXXIII C. P. C. We, therefore, grant the appellant herein two months time topay the requisite court fee on the claim preferred by him. If the

court fee is paid within the aforesaid period the suit filed by him shall be processed and disposed of by the learned Trial Judge in accordance with

the provisions of law failing which his application under Order XXXIII C P.C. shall be deemed dismissed.

The plaintiff in accordance with the order of the Division Bench has deposited the court fee. Now the only question is whether the application

filed by him under Order XXXIII is to be treated as plaint or he is required to file a fresh one. Rule 2 of order XXXIII lays down that every

application for permission to sue as an indigent person shall contain particulars required in regard to a plaint in a suit and besides that a schedule of

movable or inrnovable property belonging to the applicant. The application thus filed under Rule 2 fulfills all the requirement of a plaint. In AIR

1978 Allahbad 402 earlier Full Bfr.ch decision of the said court in case Chunnamal vs Bhgwant Kishore, 1936 Allahbad L. J. 760 has been

referred and operative, portion of the judgment has been mentioned in para 9 in the following manner :

In Chunnamal's case (1936 Allah L. J. 760 Full Bench) the Full Bench consisting of soleman C. J. Bennet and Allsob JJ took the view that where

an application for permission to sue as a pauper is rejected under Order XXXIII Rule 5 C. P. C. the court while rejecting the application can

under Sec. 149 C.P.C. allow the applicant to pay the court fees and treat the application as a plaint. If, however, the court has refused to allow the

application to sue as a pauper under order XXXIII Rule 7 subclause (3) then the court while rejecting the application for permission to sue as a

pauper cannot under Sec. 149 C. P. C. allow the applicant to pay the requisite court fee and treat the application as a plaint"".

The above said view in Chunnamal case was partly ever ruled in another Full Bench decision of the same court and it was held that an order under

Sec. 149 could be passed at the time of refusing to allow to sue as a pauper under Order XXXIII Rule 7 C. P. C. It was held that an order under

Sec. 149 C. P. C. could not be passed after an application under Order XXXIII had been finally disposed of.

The cumulative effect of the above discussed provision of law is that the application filed by the plaintiff under Order 33 C. P. C. is to be treated

as a suit, after payment of requisite court fee and it is treated so. There is no necessity of filing a fresh plaint. This application is disposed of

accordingly.