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Jugal Kishore v. Dhanno Devi (Dead) By L. Rs .
Factual and Procedural Background
Dhanno Devi, claiming to be the daughter of the original owner, Budhu Lal, sought possession of a house in Kanpur. Because she could not afford the court fee, she filed an application on 2 January 1948 under Order 33 Rules 2-3 of the Code of Civil Procedure (CPC) to sue as a pauper. The defendants—Kedarnath and Chanda Devi—contested both her title and the suit’s timeliness.
The trial court rejected the defence, decreed the suit, and the Allahabad High Court affirmed that decree on 31 March 1965. The defendants’ son, as legal representative, obtained special-leave to appeal to the Supreme Court. By the time of this appeal, only the question of limitation was pressed.
Legal Issues Presented
- Whether a suit is deemed instituted on the date an application to sue as a pauper is presented, for purposes of limitation.
- Whether the dismissal of the pauper application on 18 July 1949 and subsequent payment of court fee on 12 November 1949 rendered the suit time-barred.
- Whether the trial court had power, under Section 149 CPC, to accept the deficit court fee after the pauper application was withdrawn.
Arguments of the Parties
Appellant's Arguments
- The pauper application was dismissed on 18 July 1949; therefore no proceeding remained pending, making later restoration and payment of court fee illegal.
- Even if the application were treated as a plaint, that conversion occurred only on 12 November 1949—well beyond the limitation period that expired on 2 January 1948.
The opinion does not contain a detailed account of the respondents' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941 | A suit commences when an application to sue in forma pauperis is presented. | Relied upon as binding authority to treat 2 January 1948 as the date of institution, resolving the limitation question. |
| Bhanu v. Dalmia, AIR 1959 MP 169 | A suit already instituted continues if court fee is later paid on the pauper application treated as a plaint. | Cited to support the view that payment of court fee after initial presentation does not affect the original date for limitation. |
| Chunna Mal v. Bhagwant Kishore, AIR 1936 All 584 | View that refusal of pauper status ends the proceeding entirely. | Mentioned as the contrary view; the Court noted its doubtful validity after Vijay Pratap Singh. |
| Stuart Skinner v. William Orde (Privy Council) | Power of court to treat a pauper application as a plaint and extend time for court-fee payment. | Cited to confirm that courts may validly enlarge time for paying court fee and keep the suit alive. |
| Devendar Kumar Bharti v. Mahanta Raghuraj Bharti, AIR 1955 All 154 (FB) | Consensus that, before formal disposal of the pauper application, the court may permit payment of court fee and relate the suit back. | Used to illustrate general judicial practice consistent with the Supreme Court’s conclusion. |
Court's Reasoning and Analysis
1. Section 26 CPC permits institution of a suit either by a plaint or “in such other manner as may be prescribed.” Rules 1-3 of Order 33 constitute such a prescribed manner. Therefore, presentation of a pauper application containing all plaint particulars institutes the suit.
2. The Court adopted its earlier ruling in Vijay Pratap Singh, which definitively held that a suit commences upon presentation of the pauper application. Accordingly, 2 January 1948 is the relevant date for limitation.
3. Before the pauper inquiry concluded, the plaintiff voluntarily withdrew her pauper request and sought time to pay court fee. The trial court granted repeated extensions, the last expiring on 15 July 1949.
4. The order of 18 July 1949 dismissing the pauper application was “otiose” because the pauper request had already been abandoned and the court had agreed to treat the document as a plaint. Under Section 149 CPC, the court had power to allow payment of the deficit fee and to enlarge time.
5. The trial court never rejected the plaint under Order 7 Rule 11(c); therefore the suit remained pending. When the fee was paid on 12 November 1949, Section 149 mandated that the plaint have the same force as if the fee had been paid initially.
6. Consequently, the suit is deemed filed on 2 January 1948—the very last permissible date—rendering the limitation defence unsustainable.
Holding and Implications
Appeal Dismissed with Costs.
The Supreme Court affirmed that a pauper application constitutes institution of a suit for limitation purposes and that courts may, under Section 149 CPC, permit subsequent payment of court fee without affecting the original filing date. The ruling reinforces the liberal approach toward technical defects in court-fee payment and clarifies that erroneous dismissal of a withdrawn pauper request does not terminate the underlying suit.
D.G Palekar, J.— The appellant is the son and legal representative of the original defendants to the suit, Kedarnath and Chanda Devi. The respondents are the legal representatives of the deceased plaintiff, Dhanno Devi.
2. On January 2, 1948, Dhanno Devi presented an application under Order 33 Rules 2 and 3 of the Code of Civil Procedure for permission to sue as a pauper in the Court of the First Civil Judge, Kanpur. The plaint part of the application prayed for the relief of possession of a house situated in the city of Kanpur on the allegation that the house was of the ownership of one Budhu Lal — her father. Budhu Lal died in 1918 and on his death his widow Jumna Devi inherited the property. On Jumna Devi's death 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, 1942 i.e on the re-opening of the court and thus it was claimed the suit was within limitation.
3. 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.
4. 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 of 1955. The present appeal by special leave is directed against the judgment of the High Court.
5. Since both the courts held that Dhanno Devi had title to the house and the defendants had none, learned Council for the appellant did not, rightly, press the contention with regard to Dhanno Devi's title to the property in suit. The only point pressed before us was with regard to limitation.
6. The point of limitation arises in this way. As already stated the suit had been instituted on January 2, 1948, by an application for permission to sue as a pauper under Order 33 CPC. If that date is regarded as the date on which the suit was properly instituted then there is no dispute that the plaintiff's suit is in time. But what happened was that on February 26, 1949, before the question of pauperism was formally decided by the court, the plaintiff's pleader asked for three months time to pay the court fee on the application by treating it as a plaint. The court granted this prayer and adjourned the case from time to time to enable her to pay the court fee. The last date so fixed was July 15, 1949. On that day the plaintiff did not appear, nor did she pay the court fee and consequently on July 18, 1949, the following order was passed by the court:
“Court fee still unpaid. The applicant did not press his application to sue in forma pauperis but offered to pay court fee. He did not do so till now.
Order
The application to sue as a pauper is dismissed with costs.”
On August 13, 1949, the plaintiff filed an application for restoration of the case under Order 9 Rule 9 CPC. After hearing the defendants the court passed an order that the plaintiff should first pay the court fee and the costs of the defendants whereupon the application for restoration would be considered. Accordingly on November 12, 1949, the plaintiff paid the court fee and defendant's costs. By his order, dated April 15, 1950, the learned Judge held that the plaintiff had sufficient cause for not paying the court fee in time and restored the proceeding to the file after setting aside the order referred to above.
7. When the court fee was paid on the application i.e on November 12, 1949, the suit would have been barred by time because, as already stated, the last date for filing the suit was January 2, 1948. It is contended on behalf of the appellant that on the application to sue as a pauper being dismissed on January 18, 1949, there was no proceeding pending before the court thereafter and, therefore, the restoration 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.
8. 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, shall 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 CPC. 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”.
9. 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 property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
3. 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 authorized 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.”
10. In short, according to Rules 1, 2 and 3 a suit by a pauper is instituted when the application for permission to sue as a pauper containing the necessary particulars of a plaint is presented to the court by the applicant in person or by his authorized agent. In the present case it is not disputed that this was done on January 2, 1948.
11. There has been a conflict of judicial opinion on the question whether a suit could be held to have been instituted when a petition to sue as a pauper was presented. One view is that until permission is granted under Rule 7 of Order 33 there is no suit instituted. The other view is that since a suit under Section 26 may be instituted not merely by the presentation of a plaint but also in such manner as may be prescribed, the presentation of the application by the pauper under Order 33 would amount to institution of the suit. This latter view is accepted by this Court in Vijay Pratap Singh v. Dukh Haran Nath Singh AIR 1962 SC 941, 1962 Supp 2 SCR 675, (1964) 1 SCJ 266. In that case Vijay Pratap Singh filed a petition for leave to sue in forma pauperis for the declaration of his title to Ayodhya Raj. He claimed that on the death of the widows of Maharaja Man Singh, the estate devolved on his grandfather, Ganga Dutt, who died in 1942. The estate was thus ancestral property in the hands of Ramjivan, the father of the plaintiff, who thus got interest in the same by reason of his birth. Ramjivan was made one of the defendants to the suit. The plaintiff's petition to sue as a pauper was rejected by the Subordinate Judge under Order 33, Rule 5(d) on the ground that the allegations in the application did not show a cause of action. It is to be noted that the court had not decided the issue about his 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 transpiration 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 or permission to sue in forma pauperis, as required by Order 33 of the Code, is presented. Dealing with the point the court observed at p. 685:
“We are also of the view that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented, and Order 1 Rule 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid.”
This Court has, therefore, finally resolved the conflict by declaring that the suit by a pauper or a person claiming to be a pauper must be regarded as instituted on the date of the presentation of the application for permission to sue in forma pauperis as required by Rules 2 and 3 of Order 33 of the Civil Procedure Code.
12. As regards limitation for such a suit instituted by a pauper, the provisions of Rule 8 of Order 33 are relevant. That rule provides:
“Where the application is granted, it shall be numbered and registered, and shall be deemed to be the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.”
13. In view of this provision there is no dispute that when permission to such as a pauper is granted by the court under Rule 7 of that order, the petition or application must be regarded as a plaint filed on the day when the application was presented to the court.
14. There is, however, divergence of opinion to the legal position arising out of an order passed under Rule 7(3) refusing to allow the applicant to sue as a pauper. One view is that on such a refusal, the suit, which was already instituted, does not come to an end, because, the application by which the suit was commenced is a composite document comprising a plaint and a prayer to sue in forma pauperis and, therefore, when the latter alone 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. AIR 1959 MP 169, 1959 MPLJ 727 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 that the court has no power thereafter to permit the defunct application to be revised as a plaint by accepting court fee. See, for example, Chunna Mal v. Bhagwant Kishore AIR 1936 All 584, 1936 ALJ 760, 1936 AWR 672. How far this view can now 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 consensus 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 payment of the court fee, the application must be regarded as a plaint instituted on the day when the application was presented. See: Stuart Skinner v. William Orde and Devendar Kumar Bharti v. Mahanta Raghuraj Bharti AIR 1955 All 154 (FB), 1954 All LJ 752, ILR (1955) 1 All 568. This proceeds on the view that the court has power to permit the application to sue in forma pauperis to be treated as a plaint and to extend the time, if necessary, for payment of court fee on the document, in view of the fact that it contains all the necessary particulars for the purpose of a plaint.
15. In the appeal before us the plaintiff had offered to pay court fee on the application regarded as a plaint and the court had agreed that this may be done. There is nothing in Order 33 of the Civil Procedure Code which prevents an applicant from telling the court that though he had prayed for permission to sue in forma pauperis, he is now in possession of funds and would like to pay the court fee on the application treating it as a plaint. Thereby, in effect, the applicant withdraws his prayer for permission to sue as a pauper and requests the court not to apply the provisions of Order 33 to him. If the court agrees, and, generally in practice the court does agree, to treat the application as a plaint, in view of the fact that it contains all the necessary particulars required in a plaint, there could be no objection to the suit being treated as one instituted by the presentation of a plaint. In the present case, as already stated, even before the issue regarding pauperism came for trial and decision the plaintiff offered to pay the requisite fee on the application treating it as a plaint and the court agreed to that course. The plaintiff prated for three months time to pay the court fee by her application, dated February 26, 1949 and the court acceeded to that request and adjourned the proceedings from time to time on several occasions. The plaintiff was finally granted time to pay the court-fee until July 15, 1949, but unfortunately the plaintiff did not attend the court on that day, nor was the court fee paid. Hence the court passed the order, dated July 18, 1949, expressly saying that the application to sue as a pauper is dismissed with costs.
16. Now the above order dismissing the application to sue as a pauper was, to say the least, otiose. The plaintiff had already withdrawn his prayer for permission 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 CPC 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 11(c) CPC. 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 nonpayment 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 rejection of the plaint in the suit and, therefore, the suit continued to remain on the file. While it continued on the file the plaintiff applied to the court and paid the court fee as ordered. On the acceptance of the court fee, by the court, this document, namely, the plaint would by virtue of Section 149 CPC have the same force and effect as if such fee had been paid in the first instance viz. on the date it was presented to the court i.e January 2, 1948. In our view therefore, the suit must be regarded as properly filed on January 2, 1948; and that being admittedly the last date on which the suit could have been legally filed to avoid the bar of limitation, the plea of limitation made on behalf of the defendants must fail. In the result the appeal fails and is dismissed with costs.
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