1. This is an application purported to be under Order XXXIII, rule 1.5. C. P. C. For accepting the court-fee and registering the matter as a regular suit.
2. The applicant filed an application on 29-9-1970 under Order XXXIII, rule 1, C. P. C. For permission to sue as pauper against this: opponent, for dissolution of partnership and rendition of accounts. The Registrar, after holding an inquiry dismissed the application by order dated 18th May 1971. Thereafter the applicant deposited an amount of Rs. 1,396 as court-fee on 26th June 1971 and made the present application.
3. The office put up a note that the court-fee was insufficient: and it was the matter for consideration whether the applicant had to file a new plaint along with the prescribed court-fee or ha could continue with the suit already filed with the application under Order XXXIII. Rule 1, C. P. C. After supplying the prescrib--ed court-fee stamps. It was also pointed out by the offce that no application under section 149, C. P. C. Was made by the applicant. The opponent also contested the application. It was contented on his behalf that no such application was maintainable as the applica--tion for leave to sue as pauper had been rejected and thereby the proceedings came to an end and, therefore, the application which was originally made to sue as pauper could not be treated as a plaint, nor the provisions of section 149 C. P. C. Were attract--ed. It was further contended that in view of the allegations made in the application which was sought to be treated as a plaint proper court-fee was not paid as the property involved was of much higher value than vN hat had been assessed for the purpose of court-fee.
4. In order to appreciate the contention with regard to the first point whether the application made now is maintainable, reference may be made to the provisions of Order XXXIII, C. P. C., Rule I enables a person subject to other provisions of the order to institute a suit without payment of court-fee in case he is too poor to pay it. Rule 2 rtlates to the contents of the application. It reads as under "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."
5. Rule 3 lays down that the application should be presented in person unless the applicant is exempted from appearance. Rule 4 relates to the examination of the applicant. Rule 5 rtlates to the summary rejection of the application in case certain conditions laid down by the rule are not satisfied. Rule 6 relates to the notice of the date for receiving the evidence of tbe applicant's pauperism. Rule 7 lays down the procedure at the hearing, and after the' evidence is recorded the Court may either allow or refuse to allow the applicant to sue as a pauper. Rule 8 provides that in case an application is granted it shall be converted into a plaint and it reads as under "Where the application is granted, it shall be numbered and registered, and shall be deemed 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 pa, any court-fee of any petition, appointment of a pleader ot:" other proceeding connected with the suit."
6. Rule 9 provides that on the grounds stated therein the appli--cant may be dispaupered. Rule 10 relates to the costs to be paid in case the plaintift succeeds in the suit. Rule 11 lays down that where the paintiff fails in the suit or is dispaupered or where the suit is returned or cismissed because of certain conditions the Court shall order the plaintiff or any person added as co-plaintiff to the suit to pay the court-fee which would have been paid by the plaintiff if he bad not been permitted to sue as pauper. Rule--11-A relates to the procedure where pauper suit abates. Mule 12 gives right to the Provincial Government to apply to the Court to--snake an order for payment of the court-fee under rules 10, 11 end 11-A. Rule 13 lays down that the Provincial Government shall be deemed to be a party. Rule 14 relates to the recovery of the amount of court-fee. Rule 15 applies when an application to sue as pauper is refused under rule 7(3) and this reads as under "An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue ; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the (Provincial Government) and by the opposite. Party in opposing his application for leave to sue as a pauper."
7. Rule 16 lays down that the cost of an application for permis--sion to sue as pauper and on inquiry into the pauperism shall be= the costs in the suit. These are the various provisions of Wet: XXXIII, C.
8. P. C.
9. On the bare perusal of these provisions it is plain enoug that although when an application is granted to sue as pauper the application is converted into a suit but there does not exist any provision that in case the application is rejected it can be simi--larly allowed to be converted into a suit. On the contrary, rule 15. As reproduced above, clearly lays down that when an application to sue as pauper is refused the applicant shall be at liberty to institute a suit in the ordinary manner in respect o such right provided he first pays the costs incurred by the Pro--vincial Government and the opposite-party. The words 'to institute a suit in the ordinary manner' are pertinent and neces-- sarily require the presentation of a plaint while the earlier application which has already been dismissed cannot be converted into suit otherwise there is no reason why the Legislature should not have made such a provision. The suit can only be instituted by presenting a plaint as laid down by Order IV, rule 1 (1), C. P. C. Since b y the rejection of the application to sue as pauper the proceedings terminate the question of the application of section 149, C. P. C. Does net arise, apart from the fact that no such application has been made. Section 149 lays down that where whole or an. Part of fee prescribed for any document by law for the time being in force relating to court-fee has not been paid the Court may, in its discretion, at any stage, allow the person by whom such fee is payable, to pay whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. In the first place the words 'at any stage' envisage a stage during the pendency of the proceedings. Bu if the application is refused there is nothing left to be done and the stage for the payment of court-fee to convert the application into a suit is over.
10. The court-fee could be paid before the application was rejected with a prayer to convert the application itself into a suit and in that case it would have been permissible ,to do so, but that opportunity was lost. It is, therefore, not correct to say that on the rejection of the application to sue as pauper the application shall be treated as plaint still before the Court so that section 149, C. P. C. Can be applied.
11. This view of mine is supported by the authority in the case of Rana Afohd. Shafique v. Mohd. Hanif and 2 others (1). Similar view was taken in the case of Masawyin and others v. S. P. K. A. A. M. Firm (2) and the case of Alopi Prashad and -others v. Mst. Gappi and others (3) and the Full Bench decision in the case of Chanamal v.
12. Bhagwant Klshore (4). In all these authorities it was laid down in unequivocal terms that when the application for leave to sue as a pauper is rejected, the pro--ceedings before the Court are terminated completely, and the -application cannot be converted into a suit nor the provisions of section 149, C. P. C. Can be invoked. It was also laid down .That the application for leave to sue as pauper cannot be treated :as a composite proceeding i. e. An application for leave to sue as
(1) PLD 1955 Sind 370(2) AIR 1937 Rang. 185
(3) AIR 1937 Lah. 151(4) AIR 1936 All. 584 pauper and a plaint but the two proceedings are entirely distinct and the one is commenced after the termination of the other. But if a petitioner in an application for leave to sue as forma pauperis desires to invoke in provisions of section 149 he must make an 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. In these authorities various other rulings were referred to. One of those cases was the decision of their Lordships of the Judicial Committee of the Privy Council in the case of Stuart Skinner v. Orde (6 I A 126) which was distinguished and explained.
13. On the other hand the learned counsel for the applicant sought in aid the case of Suleimani Begum and others v. Ghulam Mohd. Shafi Khan (AIR 1960 Andh. Pra. 381) which lays down the contrary view. It was held that application to sue as pauper is a composite document consisting of an unstamped plaint and application for permission to sue in forma pauperi, and if the application was rejected the plaint still remained and the Court in its discretion while rejecting the application could allow the petitioner to pay the requisite court-fee and in such a case the suit would be deemed to have been instituted on the day of the presentation of the application. This view was based on the rule laid down by the Madras High Court. In this connection it was stated by the learned Judges that "it however cannot be denied that the Madras view has consistently been that an application to sue as pauper is composite document consisting of unstamped plaint and an application for permission to sue in forma pauperis." It was further stated that "it is well settled that the decision of the Madras High Court is binding on this Court and the counsel argued that the case should be referred to Full Bench but no sufficient ground was found to unsettle such series of decisions".
14. With due respect I am unable to share the view taken in the aforesaid case for the reasons already stated and the rule laid down by the various authorities referred to by me. It may also be pointed out that it is not correct to say that the Madras High Court has consistently taken that view. At least there is one case Re: Uthunman Pillai Tharagan and others v. T. Muhammad Usuf Tharaganar and others (AIR 1939 Mad. 316) which confirmed the view that section 149 cannot empower any Court after refusing to allow the petition to sue in forma pauperis to pay court-fee and treat the application as a plaint. In this case the authorities reported in AIR 1936 All. 584 and AIR 1937 Rang.
15. 185 were followed.
16. So far the question of insufficiency of stamp is concerned it is not necessary at this stage to decide in view of my finding that the application which has been made for the con--version of the application to sue as pauper into a plaint is not maintainable.
17. In the result I dismiss the application.