# Vijay Pratap Singh v. Dukh llaran· Nath Sillgh and

- **Citation:** [1974] 1 S.C.R. 360
- **Court:** Supreme Court of India
- **Decided:** 1973-08-13
- **Bench:** D. G. Palekar, A. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vijay-pratap-singh-v-dukh-llaran-nath-sillgh-and-5981
- **Pages:** 7

## Headnote

Civil Procedure Code., Order 33, Rule 2 and 3, Order 7 and ~ec. 149
B
Civil Procedure Code-Pauper application subsequently withdrawn-Enlargement
of time by Court for 'payment 'Of court fee--Subsequent payment of court fee
relates back to the presenJation of pauper application and the suit is deemed
/0 be presented from the date of the pauper application.
r
The respo~dent, on January , 1948, presented on aPplication under Order
33, Rule 2 and 3 of the C.P.C. for permission to sue as a pauper praying for
the relief of possession of a house to which she had an undisputed title.
On 26-2-1949, the plaintiff's pleader moved the Court for tr~ating the pauper
application as a plaint and for giving three months time for the payment of .
court fee.
On default by the respondent, the court dismissed
the
suit but
restored the same after the plaintiff on Novtmber 12,
1949,~ paid the court
fee and the costs of the defendant. The appellant contended that the applica.·
tion to sue as 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 any authority of
law and hence the suit was barred by limitation. Assuming, it was contended
that the Court had authority to treat th: application to sue as a pauper as a
plaint, the appiication had been converted into a plaint on November 12, 1949
and on that date, the suit would be barred by time. After losing in trial
court and the High Court. the appellant agitated the matter in the Supreme
Court.
Dismissing the appeal,
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HELD : . (I) Since the suit under section 26 of the C.P.C. niay be institutE
~d ·not merely by presentation of a plaint but also in such manner as may
be p11escribed, the presentation of the application by pauper u/s 33 \\'OU]d
am'Junt to . institution of the suit. [J63E-F]
Vijay Pratap Singh v. Dukh llaran· Nath Sillgh and
Another, · [1962]
2
Suppl. S.C.R. 675, relied upon.
(2) :\ suit by a pauper or a person claiming to be a pauper must be re·
garded as instituted on the date of the presentation of the application for per·
F
mission to sue in forma pauperis. [364E-F]
(3) V/here the application is granted under Order 33 Rule 7 and 8, the
application is regarded as the plaint from the date of its- presentation, ·where
before the :final disposal of the application to sue as a pauper, the plaintiff
offers to pav the court fee, treating the application as plaint, or the Court
agreeing to treat it as a plaint enlarges the time for the payment of the court ,
fee, the application must be regarded as a p!aint instituted on the date when
ihe application was presented.
[364F-H]
G
Stuart Skinner v. lVillitzm Orde, 2 Allahabad, 241 (P.C.) Devendar Kumar
Bharti v. Mahanta Ragl1uraj Bharti, A.I.R. 1955 Allahabad, 154, (F.B.), cited
\Yith approval.
(4) In the present case, the actu;i! order passed by the Court on .July 18,
1949 \\'as not an order rejecting the plaint but rejecting the application to sue
as a pauper. The said order had become otiose since the _ resoondent did
· not want to proceed as a pauper. There was, in fact, no rejection of the
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pJaint.
U /s. 149 C.P .c~. the Court can enlarge the time for the pavment Of
the court fee and the effect of the payment is. as if. the court fee is paid on the
date of the presentation of the plaint. The suit must, therefore ,be regarded
ns fileJ on JanUary 2. 1949 and "'.as \\•ithin limitation. [3660-F]
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JUGAL KISHORE I', DHANNO DEVI (Palekar, J.)
361
"'
CIVIL APPEAL No. 1326 OF 1967 : Appeal by special leave
Ullder articie 136 of the Constitution of India from the judgment and
decree dated the 31-3-1963 of the Allahabad High Court in
First
Appeal No. 92 of 1955.
S. I'. Desai, M. Natcsa11, A.T.M. Sampath and E.C. Agarwala for
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the appellant.
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M.C. Chagla, Lalit Kumar Gupta and A.G. Ralllaparkhi, for the
rcspqndent No. 1 (;i).
'llhe Judgment of the Court was delivered by
PALEKAR, J.
The appellant is

## Text

360
JUGAL KISHORE
A
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DHANNO DEVI (DEAD) BY L.RS.
·
August 13, 1973
[D. G. PALEKAR AND A. ALAGIRISWAMI, JJ.]
Civil Procedure Code., Order 33, Rule 2 and 3, Order 7 and ~ec. 149
B
Civil Procedure Code-Pauper application subsequently withdrawn-Enlargement
of time by Court for 'payment 'Of court fee--Subsequent payment of court fee
relates back to the presenJation of pauper application and the suit is deemed
/0 be presented from the date of the pauper application.
r
The respo~dent, on January , 1948, presented on aPplication under Order
33, Rule 2 and 3 of the C.P.C. for permission to sue as a pauper praying for
the relief of possession of a house to which she had an undisputed title.
On 26-2-1949, the plaintiff's pleader moved the Court for tr~ating the pauper
application as a plaint and for giving three months time for the payment of .
court fee.
On default by the respondent, the court dismissed
the
suit but
restored the same after the plaintiff on Novtmber 12,
1949,~ paid the court
fee and the costs of the defendant. The appellant contended that the applica.·
tion to sue as 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 any authority of
law and hence the suit was barred by limitation. Assuming, it was contended
that the Court had authority to treat th: application to sue as a pauper as a
plaint, the appiication had been converted into a plaint on November 12, 1949
and on that date, the suit would be barred by time. After losing in trial
court and the High Court. the appellant agitated the matter in the Supreme
Court.
Dismissing the appeal,
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HELD : . (I) Since the suit under section 26 of the C.P.C. niay be institutE
~d ·not merely by presentation of a plaint but also in such manner as may
be p11escribed, the presentation of the application by pauper u/s 33 \\'OU]d
am'Junt to . institution of the suit. [J63E-F]
Vijay Pratap Singh v. Dukh llaran· Nath Sillgh and
Another, · [1962]
2
Suppl. S.C.R. 675, relied upon.
(2) :\ suit by a pauper or a person claiming to be a pauper must be re·
garded as instituted on the date of the presentation of the application for per·
F
mission to sue in forma pauperis. [364E-F]
(3) V/here the application is granted under Order 33 Rule 7 and 8, the
application is regarded as the plaint from the date of its- presentation, ·where
before the :final disposal of the application to sue as a pauper, the plaintiff
offers to pav the court fee, treating the application as plaint, or the Court
agreeing to treat it as a plaint enlarges the time for the payment of the court ,
fee, the application must be regarded as a p!aint instituted on the date when
ihe application was presented.
[364F-H]
G
Stuart Skinner v. lVillitzm Orde, 2 Allahabad, 241 (P.C.) Devendar Kumar
Bharti v. Mahanta Ragl1uraj Bharti, A.I.R. 1955 Allahabad, 154, (F.B.), cited
\Yith approval.
(4) In the present case, the actu;i! order passed by the Court on .July 18,
1949 \\'as not an order rejecting the plaint but rejecting the application to sue
as a pauper. The said order had become otiose since the _ resoondent did
· not want to proceed as a pauper. There was, in fact, no rejection of the
11
pJaint.
U /s. 149 C.P .c~. the Court can enlarge the time for the pavment Of
the court fee and the effect of the payment is. as if. the court fee is paid on the
date of the presentation of the plaint. The suit must, therefore ,be regarded
ns fileJ on JanUary 2. 1949 and "'.as \\•ithin limitation. [3660-F]
t'
•
JUGAL KISHORE I', DHANNO DEVI (Palekar, J.)
361
"'
CIVIL APPEAL No. 1326 OF 1967 : Appeal by special leave
Ullder articie 136 of the Constitution of India from the judgment and
decree dated the 31-3-1963 of the Allahabad High Court in
First
Appeal No. 92 of 1955.
S. I'. Desai, M. Natcsa11, A.T.M. Sampath and E.C. Agarwala for
B
the appellant.
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D
E
F
M.C. Chagla, Lalit Kumar Gupta and A.G. Ralllaparkhi, for the
rcspqndent No. 1 (;i).
'llhe Judgment of the Court was delivered by
PALEKAR, J.
The appellant is the son and legal representative
of tile original defendants to the suit, Kedarnath and Chanda Devi.,
The respondents are the legal representatives of the deceased plaintiff;
Dhanno Devi.
On January 2, 1948 Bhanno. Devi presented an application under
Grder 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 Jumma Devi inherited the prop;rty.
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
Oecember 26, 194 7 but as the oourts were closed for X' mas vacation
the application had been presented to the court on January
2, 1948
1.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 limit~tion,
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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 Dhanno Devi had title to the house.
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and the defendants had none, learned counsel 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 regara
to limitation.
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SUPREME COURT REPOB.TS
( 1974 j l S.C.R.
The point of limitation arises in this way.
As alreadr st:ited the
suit had been mstituted on January 2, 1948 by an application fur
permission to sue as a pauper under Order 33 C.P .C. 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 happen·
ed was that on February 26, 1949, before the qm:stion of pauperism
was formally decided by the court, the plaintiff's pleader asked for
tl)ree 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 C.P.C. After hearing the defendants
the court passed an order that the plaintiff should first pay the court
fee and the costs of the defendants wherenpon the application
for
restoration would be considered.
Accordingly on November 12, 1949
the plaintiff paid the court fee and the defendant's costs.
By his order
dated April 15, 1950 the learned Judge held that the plaintiff had
sW!icient cause for not paying the court fee in time and restored the
proceeding to the file after setting aside the order referrect to above.
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 'COil·
tended 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 snit 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,
shall be instituted by the presentation of a plaint or in such other
manner as may be prescribed. On Jannary 2, 1948 the plaintiff bad
presented an application for permission to sue under Ord.er 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
prescribect by Order 33.
Rule 1 of Order 33 providesA
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.JUGAL KJSHORE \', DHANNO DEVI (Palekar, J.)
3&3
" 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 ~u~r
shall contain the particulars required in regard to plamts m
suits· a schedule of any movable or immovable property belonglng lo 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 authorised agent who can answer all material ques lions relating
to the application, and who mav be examined in the same
manner as the party represented by him might have been
examined had such party attended in person."
In short, aecor\ling 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, 194$.
There has been a conflict of judicinl opinion on the question
whether a suit could be held to have been instituted when a petition to
sue ~s a pauper was presented.
One view is that until permission is
granted under rnle 7 of Order 33 there is no suit instituted. The other
view is that since a suit under section 26 iμay be instituted not merely
by the presentation of a plaint but also in such marmer
as may be
prescribed the oresentation 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 and Another.(1). In that case Viiay Pratap Singh filed a petition for leave to sue in forma paufleris 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 grand father. Ganga
Dutt, who died in 1942. The estate was thus ancestral property in
!he hands of Ramiivan, the father of the plaintiff, who thus got interest
m the same bv 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 Subor~inate Judge under Order 33 rule S(d) on the
gro_und that. the allegations in the application did not show a cause of
action. It 1s to be noted that the court had not decided the issue about
hi.s pauperis~ 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 bnt that
application was also rejected.
This court held that the rejection of
both these applications was improper because, in the first case, the
(I) [1962] (2) Suppl. S. C.R. 675.
:364
SUPREME COURT REPORTS
( 1974] 1 S.C.R,
court had to see under rule 5 ( d) whether the allegations made in the
petition showed a cau~e of acti<m 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 IO 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,.·ftrma pauperis is but a method prescribed
by the Code for institutmtl of a suit without payment of court fee and,
therefore, the suit commences from the moment the application for
pennission 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 of the view that the High Court was in erro)'
in holding that by. an application to sue in forma pauperis,
the applicant prays for relief personal to himself. An appli,
cation 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. IIthe 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 0.33 of the Code of Civil procedure is presented,
and 0.1, r.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, thererore, 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 fonna pauperis as required by rules 2 and 3
of Order 33 Civil Procedure Code.
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 (ees
payable for service of process) in respect of any petition,
appointment of a pleader or other proceeding connected with
the suit.''
In view . of this provision ·there is no dispute that when permission
to sue 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.
There is, however, divergence of opinion with regard to the legal
position arising out of an order passed under rule 7(3) refusing to
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J UGAL KJ'SHORE v: DHANN() DEVI ( Palekar, J.)
. 3 e 5
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 smt 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 proceedmgs can still continμe 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.( 1)
The other view is that when the app.1cation to sue as a pauper is ref·
used, that puts an end to the application, which is not a compo>ite
document, and the court has no po~ver thereaf1er to permit the defunct
appiication to be revived as a plaint by accepting court fee.
See, for
example Chunna Mal v. Bhagwant Kishore.(2)
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 ~pauper, the plainiff 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 : Sruart Skinner v.
William Orde(8 ), Devei<der
Kumar
Pharti, v. Mahanta
Raghuraj
Bharti(') . This proc,eds on the view that the court has power to
permit the application to· sile in forma pauperis to be treated as 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.
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 Civil Procedure Code
which prevents an applicant from telling the caurt 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.
~f 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 pariculars 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 cose, as
already stated, even before the issue re!!arding oauo~rism came for trial
and decision the plaintiff offered to pay the requisite fee on the application treating it as a olaint and the court agreed to that course. The
plaintiff prayed for three months time to -Pay the court fee by her
application dated February 26, 1949 and the court acceded to that
request and adjourned the proceedings from time to time on several
(!) A.LR. 1959 M. P. 1.69.
(3) 2 Allah a bad, 241 (P. C. l
(2) A.1.R. 1936, Allahabad, 584.
(4) A. I.R. 1955 Allahabad, 154 (F. ll.l
:!66
SUPREME COURT REPORTS
[ 1974] 1 s.c.R.
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 orlu.'t 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.
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 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 11 ( 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 plain~ 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, the
document, namely, the plaint would by virtue of Section 149 C.P.C.,
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 en
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.
S.B.W.
Appeal dismissed.
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