Vedanta Jit Singh Walia vs Shri Subhash Jit Singh Walia & Anr
2009 Latest Caselaw 1554 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 IPA 4/1998


%                                 Date of decision: 21.04.2009


VEDANTA JIT SINGH WALIA                               ...Petitioner
                        Through: Mr Ashish Bhagat and Ms Manisha
                                 Suri, Advocates

                                Versus

SHRI SUBHASH JIT SINGH WALIA & ANR ... Respondents
                        Through: Mr Arun Khosla, Advocate


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW



1.     Whether reporters of Local papers may
       be allowed to see the judgment?   YES

2.     To be referred to the reporter or not?   YES

3.     Whether the judgment should be reported        YES
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The question of procedure to be followed upon withdrawal of a

prayer to sue as an indigent person, has arisen for consideration.

The suit for partition of immovable properties and other reliefs,

showing the valuation thereof for purposes of court fees and

jurisdiction in excess of Rs.20 crores was filed by the petitioner. A

separate application under Order 33 Rule 1 CPC was also filed. The

same was registered on 27th April, 1998 and inquiry in regard to the

petitioner being an indigent person was ordered. The said inquiry

remained pending and no progress was made therein. After it had

been pending for nearly nine years, on 25th July, 2007 it was

submitted by the counsel for the petitioner that the petitioner "has to

withdraw the application under Order 33 Rule 1 CPC seeking

declaration of the applicant as an indigenous person and he wants to

proceed with the suit as a non indigenous person". Time was sought

from the court for filing the court fees and for moving appropriate

application to the said effect and to take steps in the suit. The matter

was adjourned to 8th January, 2008.

2. Before the next date IA.No.185/2008 under Sections 148/149

and Section 151 CPC was preferred for enlargement of the time for

filing the court fees. This court vide order dated 8th January, 2008

allowed the said application and gave three months more time to the

petitioner for depositing the court fees.

3. The petitioner, however, failed to deposit the court fees and

when the matter came up next on 18th July, 2008 it was orally

submitted that the petitioner had been unable to pay the entire court

fees of about Rs 20 lacs. The petitioner offered to pay the court fee

of Rs 5 lacs immediately and sought extension of time for payment of

the balance court fees. The petitioner was directed to deposit the

court fees to the extent of Rs 5 lacs within two weeks and was

granted further time of six months to deposit the balance court fee.

4. The court fee of Rs 5 lacs was deposited. When the matter

came up next before the court on 22nd January, 2009, yet again time

was sought for making up the deficiency remaining in the court fee.

On 17th February, 2009, the petitioner was granted further time of

30 days to make up the deficiency and it was further ordered that

upon the failure of the petitioner, the plaint shall stand rejected

under Order 7 Rule 11 CPC.

5. The petitioner has till date not made up the deficiency. On 20 th

April, 2009 the counsel for the respondents submitted that upon the

petitioner withdrawing the prayer to sue as an indigent person, there

was no proceeding pending before the court and no further time

could be given and has been wrongly given in the past, for payment

of court fee. It was contended that upon the application for suing as

an indigent person being withdrawn or being dismissed, the

proceedings came to an end and if at all the petitioner is desirous of

suing as a non indigent person an independent suit has to be

instituted. The matter was thereafter posted for today for arguments

of the counsel for the petitioner on this aspect.

6. Thus the question which has arisen for consideration is as to

whether the present proceedings came to an end on 25th July, 2007

when the petitioner withdrew the prayer to sue as an indigent

person or whether the suit filed in forma pauperis can be converted

into an ordinary suit and time given to the petitioner for making up

the deficiency in court fee.

7. The counsel for the respondents has relied upon Ma Saw Yin

Vs S.P.K.A.A.M. Firm AIR 1937 Rangoon 185 holding that when the

application for leave to sue as a pauper is rejected the proceeding

before the court are terminated completely and the plaint filed in

forma pauperis can be considered as the plaint only if leave is

granted to sue in forma pauperis It was further held that upon leave

to sue as an indigent person being refused, the only course available

to the applicant in such event is to pay court fees and institute the

suit in the ordinary manner. It was further held that such a suit

cannot be deemed to have been instituted at the time the application

for leave to sue as a pauper was made, inasmuch as the two

proceedings are entirely distinct and one commences after the

termination of the other. It was further held that if the applicant is

desirous to take advantage of Section 149 of the CPC, he must make

his application for permission to pay the court fees on the proposed

plaint or for grant of time for such payment before his application for

leave to sue in forma pauperis is finally rejected. The counsel for the

respondent also relied upon Alopi Prashad Vs Mt. Gappi AIR 1937

Lahore 151 holding that if the application to sue as an indigent

person is rejected, it does not ripens into a plaint. It is only when the

application is allowed and ripens into a plaint then the date of the

institution of the suit relates back to the date of the filing of the

application. It was further held that once the application is rejected,

there is no proceeding before the court and time for payment of

court fees cannot be granted. Reliance was also placed on the Full

Bench of the Allahabad High Court in Chunna Mal Vs Bhagwant

Kishore AIR 1936 Allahabad 584 holding that the application to sue

as an indigent person cannot be treated as a composite document

i.e., as an application to sue as a pauper and also as a plaint.

8. Per contra, the counsel for the petitioner relies upon Order 33

Rule 15A inserted by the amendment to the CPC of 1976. It is urged

that before the amendment different views were taken by the courts

as to the status of the proceedings on rejection / refusal for leave to

sue as an indigent person; it was further submitted that even though

in Jugal Kishore Vs Dhanno Devi AIR 1973 SC 2508 the apex

court settled the controversy which had been raging and held 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 where the court agrees to treat it as a

plaint and enlarges the time for payment of court fee, the application

must be regarded as a plaint instituted on the day when the

application was presented, the legislature in any case for

clarification brought Rule 15A. Order 33 Rule 15 A is as under:

" 15A. Grant of time for payment of court fee. - Nothing contained in rule 5, rule 7 or rule 15 shall prevent a court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite court fee within such time as may be fixed by the court or extended by it from time to time; and upon such payment and on payment of the costs referred to in i [***] rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented."

9. Reliance was also placed by the counsel for the petitioner on

Mavji Kanji Jungi Vs Premji Punja Hodas AIR 1992 Gujarat 147.

The counsel for the respondents in rejoinder has urged that the apex

court in Jugal Kishore (supra) was concerned with a case where the

applicant had before refusal/rejection of the leave to sue as a pauper

asked for the application to be treated as a pliant and the court had

granted such permission. It is contended that in the present case no

such permission had been granted and in fact on 25th July, 2007, a

request for withdrawal of the application to sue as an indigent

person was made and whereupon the application / plaint stood

dismissed as withdrawn and the question of granting any time for

making up the deficiency in court fee did not arise. It was further

urged that the apex court in Jugal Kishore (supra) was not faced

with the question as before the Full Bench of the Allahabad High

Court and which had held that the application to sue in forma

pauperis could not at the same time be a plaint.

10. I do not agree with the contention of the counsel for the

respondents that the proceedings stood culminated/withdrawn on

25th July, 2007. Even though the counsel for the applicant/petitioner

informed the court on that date that the petitioner was withdrawing

his application under Order 33 Rule 1 CPC and wants to proceed

with the suit as a non indigenous person, neither any permission to

withdraw was granted nor the proceedings dismissed as withdrawn.

On the contrary, on the request of the counsel for the petitioner time

was granted for filing court fee and appropriate application for

withdrawal of application to sue in forma pauperis. The order sheet

of any of the subsequent dates also do not lead me to believe that the

court granted permission to the petitioner to withdraw and/or

treated the petition to have been withdrawn and/or did not make

any order dismissing the petition as withdrawn.

11. In fact, in my view, the facts of the present case are identical

to that as of Jugal Kishore (supra) before the apex court.

12. The aspect of withdrawal of plaint and application is

prescribed in order 23 Rule 1 of the CPC. The same envisages an

application whether in writing or oral for withdrawal of the

proceedings and does not seek to suggest that upon intention to

withdraw, the proceedings ipso facto stand withdrawn. Thus in the

absence of any express order granting permission to the petitioner to

withdraw the application to sue in forma pauperis and in the absence

of any order dismissing the petition as withdrawn, it cannot be said

that the proceedings have culminated or that now there is nothing

before this court on which orders can be made.

13. The Gujarat High Court judgment aforesaid in fact has gone to

the extent of holding that even where the leave to sue as an indigent

person is refused, the request for payment of court fee can be made

subsequently also, even if not made at the time of refusal. The same

view has also been taken in Makarand Krishnaji Joshi

Vs. Sadashiv Vithal Joshi AIR 1990 Bombay 159 where it is held

that even if an application for permission to sue as forma pauperis is

dismissed for default, procedure under Rule 15 and 15A has to be

followed and opportunity has to be given to pay the requisite court

fee.

14 The judgments cited by the counsel for the respondent of pre

1976 do not now appear to be good law in view of the insertion of

Rule 15A as aforesaid. The same enables the court to when rejecting

an application or refusing an application to sue in forma pauperis, to

grant time to the petitioner to make the payment and expressly

provide that upon such payment the suit shall be deemed to have

been instituted on the date on which the application for permission

to sue as an indigent person was presented. Here the request for

grant of time to pay the court fee was made on the same day as the

intimation of the petitioner having opted not to sue as an indigent

person. In the aforesaid facts and circumstances, I hold the law now

to be that irrespective of the application to sue as an indigent person

being allowed or disallowed or withdrawn, the plaint is deemed to

have been instituted on the date when the application to sue as an

indigent person was first presented, as long as in the case of the

application being disallowed or withdrawn, the request for payment

of court fee is made at the same time. The said requirement is

satisfied in the present case.

15. Thus, it cannot be said that on 25th July, 2007 the application

was withdrawn or rejected and thus this court is empowered to from

time to time grant time to the petitioner to make up the deficiency in

court fee. The counsel for the petitioner has stated that the foreign

remittance has taken some time and has assured that the money for

the balance court fee has now been deposited and the respondent

can now file the requisite court fee before the court at any time

whatsoever.

RAJIV SAHAI ENDLAW (JUDGE) April 21, 2009 M

i The words "sub-rule (2) of" omitted by Act 19 of 1988, sec. 3 and Second Sch.