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TMI Blog1973 (8) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... th on December 26, 1935 Dhanno Devi, as the daughter, was entitled to succeed to the property. The defendants were in possession and were falsely refusing to yield up their possession to Dhanno Devi and hence she was required to file the suit. A very large amount had to be paid as court fee which Dhanno Devi was not in a position to pay and hence she prayed that permission may be given to her to sue as a pauper. The last date for filing the suit was December 26, 1947 but as the courts were closed for X' mas vacation the application had been presented to the court on January 2, 1948 i.e. on the re- opening of the court and thus it was claimed the suit was within limitation. The defendants disputed the plaintiff Dhanno Devi's title contending that she was not the daughter of Budhu Lal. They also contended that the suit was barred by limitation. The Trial Court negatived the contentions of the defendants and decreed the suit. That decree was confirmed by the High Court of Allahabad by its Judgment dated March 31, 1965 in First Appeal No. 292/1955. The present appeal by special leave is directed against the judgment of the High Court. Since both the courts held that Dhann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Proceeding and the payment of court fee were without authority of law and hence the suit was barred by limitation. Assuming, it was contended, that the court had authority to treat the application to sue as a pauper as a plaint, the application had been converted into a plaint on November 12, 1949 and on that date the suit would be barred by time. Section 26 of the Civil Procedure Code provides how a suit is to be instituted in a Civil Court. Every suit, as stated in that section, hall be instituted by the presentation of a plaint or in such other manner as may be prescribed. On January 2, 1948 the plaintiff had presented an application for permission to sue under Order 33 C.P.C. It was not a suit instituted by the presentation of a plaint. But the suit was obviously instituted in a manner Prescribed by Order 33. Rule 1 of Order 33 provides- Subject to the following provisions any suit may be instituted by a pauper The manner of such institution is provided in rules 2 and 3 which are as follows 2. Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pauperism because that could be done only under Rule 7(3) after trial of the issue under rule 6. On such rejection Ramjivan-the father applied to the court to be transposed as the petitioner but that application was also rejected. This court held that the rejection of both these applications was improper because, in the first case, the court had to see under rule 5 (d) whether the, allegations made in the petition showed a cause of action and the court had no power to enter upon a trial of the issues affecting the merits of the claim at that stage. As regards Ramjivan's application for transposition under Order 1 Rule 10 it was held that the application was wrongly rejected because such an application. could have been legally entertained by the court because the suit had already been instituted. It was pointed out that an application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit without payment of court fee and, therefore, the suit commences from the moment the application for permission to sue in forma pauperis, as required by Order 33 of the Code, is presented. Dealing with the point the court observed at page 685. We are also o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one is refused, the suit does not come automatically to an end. The proceedings can still continue if court fee is paid on the application treated as a plaint, in which case the date for limitation would be the date on which the application was presented to the court. See, for example, Bhanu v. Dalmia and Co. A.I.R. 1959 M. P. 169 The other view is that when the application to sue as a pauper is refused, that puts an end to the application, which is not a composite document, and the court has no power thereafter to permit the defunct application to be revived as a plaint by accepting court fee. See, for example Chunna Mal v. Bhagwant Kishore. A.I.R. 1936, Allahabad, 584. How far this view can be sustained after this Court's decision in Vijay Pratap Singh v. Dukh Haran Nath Singh, referred to above, is a matter which we are not called upon to decide in the present appeal. Nevertheless, it must be noted that there is almost a concensus of opinion that where, before the formal disposal of the application to sue as a pauper, the plaintiff offers to pay the court fee treating the application as his plaint, or, the court, agreeing to treat it as a plaint, enlarges the time for paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to sue as a pauper and the court had agreed to the withdrawal of that prayer and to treat his application as a plaint. From that time onward the suit which had been properly instituted could only proceed on the basis that the suit was as good as a suit filed on a plaint. And in such a case it was open to the court under section 149 C.P.C. to order the plaintiff to pay the deficit court fee and enlarge the period to pay such court fee. If the court fee is not paid, the only order that the court could have passed was to reject the. plaint under Order 7 rule 1 1 (c) C.P.C. The rejection of a plaint is a decree and appealable as. such. The question, therefore, is whether in this case there was any rejection of the plaint for non-payment of the deficit court fee,. The actual order passed by the court on July 18, 1949 does not show that the plaint had been rejected. What the court did was to reject the plaintiff's application to sue as a pauper which was a redundant order because the prayer to sue as a pauper had been withdrawn much earlier and the application to sue as a pauper, as such, did not survive for being dismissed on July 18, 1949. In law, therefore, there was no reject ..... X X X X Extracts X X X X X X X X Extracts X X X X
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