Patna High Court
Mathura Singh vs Sm. Sudama Debi And Ors. on 13 May, 1953
Equivalent citations: 1953(1)BLJR485, AIR 1954 PATNA 170
JUDGMENT Ahmad, J.
1. This application in revision is by defendant 1 against an order dated 2-5-1951, passed in Title Suit No. 58 of 1948 which is still pending for disposal in the second Court of the Subordinate Judge at Monghyr.
2. The suit is for declaration of title and recovery of possession in respect of land given in the Schedules attached to the plaint.
3. The suit was originally filed in 'forma pauperis' and it was numbered as Miscellaneous Case No. 14 of 1948. This application for permission to sue in 'forma pauperis' was, on hearing, rejected on 16-12-1948, and the Court passed the following order:
"From all these it can be safely inferred that the applicant has got sufficient means to pay the court-fee in the suit which is valued at Rs. 11000/- only. In this view of my finding the Misc. case is rejected on contest with costs. Pleader's fee at Rs. 167- only."
It is evident from this order that the Court did nob give any time to the applicant for depositing the court-fee necessary in order that the application on its payment could have been converted into a plaint of a regularly constituted suit. Tha order sheet of the case shows that on 16-12-1948 three orders bearing Nos. 20, 21 and 22 were passed by the Court.
These orders are as follows:
"Order No. 20 dated 16-12-1948-- "Order passed. Misc. case rejected on contest with cost as per separate order sheet."
Order No. 21 dated 16-12-1948--"Memo of cost:--Applicant to pay Rs. 59/10/- as cost of the Misc. case to the O. P......."
Order No. 22 dated 19-12-1048--"T. S. No. 58/48--Misc. case having been rejected, Register the plaint as T. S. Office to check and report by 20-12-48."
4. On 20-12-1948 the Court passed the following order as it appears from the order-sheet:
"Head office report. Plaintiff to pay court-fee of Rs. 1020/15/- along with talbana and w.p. of summons etc. and remove the defect as pointed out by the office on the back of the plaint by 5-1-49."
This order indicates that the Court subsequently on 20-12-1948 decided to give time to the applicant in the miscellaneous case for the payment of the Court-fee. This, in my opinion, the Court had no jurisdiction to do. This point stands concluded by the authority of this Court laid down in the case of -- 'Lala Mistry v. Ganesh Mistry', AIR 1938 Pat 120 (A).
In that case Rowland J. observed:
"This in my opinion is the correct view. Allsop J. went on to express the opinion that the power to permit the application to be converted into a plaint by payment of court fees which the court undoubtedly has during the pendency of the application as held by the Judicial Committee could be exercised, at the time of rejecting the application, that is to say, if in one single order the court declined leave to sue as a pauper and also gave time for riling of court-fees, this would be within the discretion allowed by Section 149 but he agreed with the other Judges that once an order finally disposing of the application for leave to sue as a pauper had been passed it was no longer open to the court to give any further time so as to revive the proceedings already completely disposed of and to permit them to be resumed. I am inclined on a review of the Code and of the authorities to agree with the view expressed by Allsop, J."
It is, therefore, clear that the Court having once dismissed the application for leave to sue in 'forma pauperis' on 16-12-1948 without giving any time to the applicant for the payment of the court-fee could not by a subsequent order give time to her for depositing necessary court-fee. This order of 20-12-1948 was in this view of the matter, in my opinion, without jurisdiction.
5. The court, however, persisted in its order passed on 20-12-1948. The Court fee, however, was not in fact paid according to this direction and on 5-1-1949 time was again extended for the payment of the Court fee till 8-1-1949. On 8-1-1949 the applicant in the miscellaneous case filed a petition for time in order to enable her to move the High Court against the order passed by the Court on 16-12-1943 dismissing her Miscellaneous case No. 14 of 1948. The Court on hearing the applicant allowed it and again extended the time for payment of court-fee till 31-1-1949. On 31-1-1949 the plaintiff again filed a petition for extending time for payment of the Court-fee, as she had failed to move the High Court against the order dated 16-12-1948 by that time.
This application was rejected on 31-1-1949, and the Court on that date passed the following order:
"Plaintiff files a petition stating that due to pecuniary shortage she could not be able to file an appeal in the Hon'ble High Court and prays for one month's time to file the same and bring the stay order therefrom. Or--Not moved. There is hardly any merit in the petition. The plaint therefore stands rejected for non-payment of c.f."
Here also the learned Subordinate Judge fell into an error. He must have realised that till then there was no plaint before him to be rejected. The miscellaneous case having been dismissed without any time being given for the payment of the court-fee, the matter stood closed and therefore there could be no plaint to be considered by him. In spite of it he passed an order to the effect that the plaint stood rejected for non-payment of court-fee.
6. It appears that in the meanwhile the applicant in the miscellaneous case had moved the High Court against the order dated 16-12-48, whereby the miscellaneous case had been dismissed. This application in revision in the High Court was dismissed on hearing by an order dated 17-5-1S50.
7. Thereafter, on 13-6-1950 the applicant filed an application before the trial Court under Sections 149 and 151 and Order 9, Rule 4, Civil P. C. In para. 4 of that petition the applicant stated "That your petitioner wants to proceed with the aforesaid suit on payment of the court-fee", and sought the following relief:
"It is therefore prayed that your honour may be graciously pleased to call for the record and after perusing the same be pleased to order for the payment of the court-fee and proceed with the suit."
On that application on 15-6-1950 the following order was passed by the Court: "Application under Sections 149, 151 and under Order 9, Rule 4, C. P. C., filed. Register, office to check: and report by 19-6-50." It appears that this application was treated as Miscellaneous Case No. 22 of 1950. Ultimately, on 21-8-1950 the Court passed the following order in that Miscellaneous Case No. 22 of 1950 :
"Record put up. Heard applicant's pleader. Ordered. Let her pay C. F. The suit is restored subject to the objection, if any, of the other side on ground of limitation. To 26-8-50 for payment of C. F."
Pursuant to this order the applicant on again getting a few extensions in time for its payment paid the necessary court-fee on 10-10-1950. The order passed on 10-10-1950 was to the following effect:
Court-fee of Rs. 1020/15/- paid. Let the plaint be admitted. Plaintiff to file talbana and w. p. of summons etc. by 13-11-50, without fail."
Here, another grave blunder was committed by the learned Subordinate Judge. The application filed by the applicant in Miscellaneous Case No. 22 of 1950 was in substance and effect for a prayer to be allowed to pay the Court-fee in the 'forma pauperis' application which had already been disposed of by an order dated 16-12-1948 and which order had further been by that time confirmed by the High Court by its order dated 17-5-1950. The learned Subordinate Judge should have at least by now realised that the matter had been concluded by the order of the High Court, and he had no jurisdiction to allow the applicant in the 'forma pauperis' case to deposit court-fee in order that her application may be converted into a plaint, specially when the High Court had not given any time to the applicant for doing it.
This, however, the learned Subordinate Judge was not the least careful to realise and passed the order which I have quoted above. He even thereafter did not stop there. On the top of the blunder which I have just referred to he committed another serious mistake. In restoring the 'forma pauperis' application he did not, surprisingly, think it necessary to issue notice to the parties concerned, for even if he thought that this application was not for an order allowing the applicant to pay court-fee but for the review of the order passed on 16-12-1948, it was incumbent upon him under the law to issue notice before passing any final order on that application for review. Mr. J. C. Sanyal appearing for the opposite party has laid reliance on the case of -- 'Surendra Prasad v. Aftabuddin Ahmed', AIR 1922 Cal 234 (B) in support of his contention that as the Miscellaneous Case No. 14 of 1948 had been dismissed without issuing any notice to the opposite party in that case, it was not necessary under those circumstances at the time of reviewing that order to issue any notice to them.
I am afraid this authority doss not at all apply to the facts of the present case. The point stands concluded by an authority of this Court in the case of -- 'Suraj Pal v. Uttim Pandey', AIR 1922 Pat 281 (C). Further, the provisions of rule laid down under Order 47, Rule 4 also make it incumbent upon the Court to issue notice before passing any final order on an application for review. The proviso to Sub-clause (2) of Rule 4 of Order 47, Civil P. C. reads:
"Provided that no such application shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree or order, a review of which is applied for."
It is, therefore, clear that the learned Subordinate Judge had no jurisdiction to pass final order on the application filed in Miscellaneous Case No. 22 of 1950 without issuing notice to the other side. The Court did otherwise in complete ignorance and contravention of the law.
8. Then, it appears that when the notices were served on the defendants in pursuance of the order passed on 21-8-1950, defendant 1 appeared on 12-4-1951 and filed an application objecting to the order passad by the Court on 21-8-1950. Paragraphs 4 and 5 of that application were to the following effect:
Paragraph 4 "That the court had no jurisdiction to entertain any application for restoration and the order of rejection of the plaint for non-payment of court-fee is appealable as a decree."
Paragraph 5:
'That the petitioner further submits that the application for restoration was barred by limitation and in any view of the matter the Court acted illegally in restoring the case without service to the petitioner."
And thereafter he sought the following relief in that application:
"It is therefore respectfully prayed that the order of restoration of the suit passed on 15-6-1950 in Misc. Case No. 22/50 be recalled and the Misc. Case No. 22/50 be heard in presence of the petitioners."
It appears that the officer who had passed the order on 21-8-1950 had in the meantime been transferred, and the application was taken up for consideration by his successor in office. The relevant portion of the order was as follows:
"But my predecessor rejected the plaint on 31-1-1949 for non-payment of the proper court-fees. Lastly plaintiff paid the deficit court-iee on 10-10-50 and my predecessor restored the suit, and admitted the plaint. Now defendants have filed objection and pray that the restoration order be vacated. When the suit has been restored by my predecessor I should not sit in appeal over his decision and set aside his order. But it is open to the defendants to urge the question of limitation at the proper time as has been observed by my predecessor."
The present application is directed against this order. I have already discussed that the learned Subordinate Judge at every stage in the course of this case committed blunders after blunders, and had not the least regard for the provisions of law to be applied in the circumstances of the case. The Court had no jurisdiction, firstly, to give any time to the petitioner to pay court-fee when once the matter had been finally decided by its order dated 16-12-1948 and concluded by the order of the High Court dated: 17-5-1950. Even if the trial Court thought that the application was an application for review he could not have passed final orders on an application for review without issuing notices to the other side. For these reasons the order passed by the learned Subordinate Judge on 2-5-1951, is not in accordance with law and cannot be maintained.
9. The application is accordingly allowed, the order dated 2-5-1951 is set aside, and the learned Subordinate Judge is directed to consider the application filed by the petitioner on 12-4-1951 in the light of the observations made by me in the foregoing paragraphs. The costs of this application are assessed at three gold mohurs.
Narayan, J.
10. I agree. This is a most glaring instance of a case in which the parties have been harassed on account of the inability of the Court to follow the procedure laid down by law. The order sheet is full of illegal and improper orders, and after the rejection of the petition for permission to sue in 'forma pauperis', the Court could not on 16-12-1948 order registration of a plaint as a title suit and could not direct the office to check and report. There was no plaint before the Court after the rejection and there was nothing to be checked and reported about. On 20-12-1948 some office report was submitted to the learned Subordinate Judge, and he directed that the Court-fee should be paid by 5-1-1949. There were some adjournments after that, though there was no case pending, and the climax was reached when on 31-1-1949 the Court passed an order rejecting the plaint, though in fact there was no plaint to be rejected.
11. On 15-6-1950 the petitioner whose applica tion for permission to sue in 'forma pauperis' had already been dismissed filed a petition praying that she might be permitted to pay the court-
fee and proceed with the suit. This application was allowed on 21-8-1950, and the order was that the suit be restored subject to objection, if any, of the other side on the ground of limitation.
No notice was given to the opposite party about this application, and the learned Subordinate Judge had no jurisdiction to restore the original proceeding. There was no suit before the learned Subordinate Judge to be restored in August 1950, and it is highly regrettable that the learned Sub ordinate Judge did not at all apply his mind with a view to appreciating the position that had been created by the rejection of the application to sue in 'forma pauperis'.