' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises out of an application, filed by respondent No,1, for permission to file a suit against the petitioner in forma pauperis under Order XXXIII rule 1 of the Civil Procedure Code for declaration and possession of agricultural land measuring 106 Kanals 13 Marlas situated in Toba Tek Singh. This application was rejected by the trial Court on 22nd of March, 1988. Respondent No,1 was however allowed to affix the requisite court-fee till 22nd of May, 1988. On an application filed by him, the time for payment of court-fee was extended upto 22-5-1988. The petitioner challenged the order dated 22nd of March, 1988 of the trial Court by filing an application for revision which was dismissed by the District Judge on 28th of May, 1990. Hence, this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
2. Chaudhry Ghulam Rasool, Advocate, learned counsel for the petitioner has contended that having dismissed the application for permission to sue as a pauper, the Court became functus officio and there was no jurisdiction left in it to allow respondent No,2 to affix court-fee and to treat the application as a plaint. The learned counsel has relied upon Allarakha v. Baboo Brothers Transport Co. Karcahi (PLD 1972 Kar. 215 Jaipal Ahir and another v. Badri Prasad and another (AIR 1936 All. 485) and Alopi Prashad and others v. Mst. Gappi and others (AIR 1937 Lah. 151).
3. The learned counsel for the respondent, on the other hand, maintained that on the dismissal of the application for permission to sue as pauper, the trial Court did not become functus officio but retained seizen of the case and could on the payment of the requisite court-fee treat the application as a plaint. He relied upon Ark Navigation Company of Pakistan Ltd. And another v. Esso Pakistan and another (PLD 1987 Kar. 660).
4. Order XXXIII rule 1 of the Code of Civil Procedure permits the institution of a suit in forma pauperis, subject to the provisions contained therein. Rule 2 provides as to what the application should contain. Rule 3 deals with the presentation of the application by the pauper, while rule 4 enables the Court to examine the applicant if it so thinks fit. According to rule 5, the Court shall reject an application for permission to sue as a pauper if it is not framed and presented in the manner prescribed by rules 2 and 3; or where the applicant is not a pauper. If the Court sees no reason to reject the application, it has to fix a date for which a notice in terms of rule 6 has to be given to the opposite-party and to the Government Pleader. The Court may, after examining the witnesses and hearing arguments, either allow or refuse permission to sue as pauper. Next provision which is relevant in the present context is rule 15 of Order 33, which provides that an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature; but the applicant shall be at liberty to institute a suit in the ordinary manner.
5. In the present case, the trial Court proceeded under rule 5 of Order XXXIII of the Code of Civil Procedure to reject the application of the petitioner holding that he was not a pauper. The question which arises for consideration, therefore, is as to whether the trial Court, while rejecting the application, could have allowed respondent No,1 to affix proper court-fee and to treat it the plaint as having been filed on the day when the application was presented.
6. Although there appears to be a divergence of opinion on this question, but the of view that the judgment of the Sindh High Court in Ark Navigation Company's case supra enunciates the correct legal position. In that case, it was held that the Court while rejecting the application for leave to sue as pauper under rule 5 may, if it is satisfied that the application was not mala fide, permit the applicant to make good the deficiency in court-fee under section 149 of the Civil Procedure Code and on such court-fee being paid, within the time allowed by the Court, the application can be treated as a plaint deemed to have been presented on the day when the application was filed.
7. It is to be noticed that the provisions of Order MOM of the Code of Civil Procedure are beneficial in nature and are designed to ameliorate the hardship faced by those who are not in a position to pay court-fee. Although the proceedings commence by filing an application for permission to sue as a pauper, rule 2 of Order 33 requires that the application for permission to sue as a pauper shall contain the particulars requisite in regard to plaint in a suit There thus appears to be no difficulty as to why if the Court refuses permission to the applicant to sue as pauper, the application should not be treated as the plaint. It needs be remembered that under section 26 of the Code of Civil Procedure, a suit can be instituted not only by presentation of a plaint but also in such other manner as may be prescribed. The expression "prescribed" according to definition's appearing in section 2(16) means prescribed by rules. Order 33 rules 1 and 2 permit the filing of a suit by a pauper by making an application for permission to sue. It will be useful to refer to two decisions of the Supreme Court of India. In Vajai Pratap Singh v. Dukh Singh (AIR 1962 SC 941) and Jugal Kishore v. Dhannno Devi (dead) (AIR 1973 SC 2508), which have taken the view that a 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 Code of Civil Procedure.
8. It is to be seen that non-payment of proper court-fee has no effect as regards the institution of the suit and the validity thereof is not affected by deficit court-fee. This principle stands firmly established by the authority of the Supreme Court in Siddique Khan and 2 others v. Abdul Shakoor and another (PLD 1984 SC 289), wherein it was also held that while considering the question of exercise of discretion for grant of time, the factors relevant to the period of limitation are not to be taken into account. These observations of the Supreme Court, if I may say so, are instructive and should be given full weight to, while considering the question in hand.
9. So far as the Lahore High Courts is concerned, the view taken in Alopi Prashad's case (AIR 1937 Lah. 151) supports the contention of the learned counsel for the petitioner. However, a different view was taken by a Division tench of the Lahore High Court in Ram Het Gir and another v. Banwari Lal and another (AIR 1938 Lah. 41), wherein the judgment in Alopi Prahad's case was distinguished by the Division Bench, and it was held that it is open to a Court to ask the plaintiff to deposit proper court-fee by a certain date, while rejecting the application for permission to sue as a pauper and the suit should be deemed to have been filed on the day when the application under Order 33 rule 2 was made. This judgment was followed by the West Pakistan High Court in Ch. Nazar Muhammad and others v. Shafiq Ahmad Khan and others (PLD 1963 (W.P.) Lah. 23 and Muhammad Shafi v. Sh.
Abdul Aziz PLD 1961 (W.P.) Pesh. 67). The Dacca High Court in Suratan Nessa Bibi v. Muhammad Naimuddin Mondal and others (PLD 1965 Dacca 531) has also taken the same view.
10. As regards the judgment of the Sindh High Court in Allahrakha's case (PLD 1972 Kar. 215) it may be mentioned that the Court itself has taken a different view in Ark Navigation Company of Pakistan Ltd. And another v. Esso Pakistan and another (PLD 1987 Kar. 660). Although it is correct that the earlier judgment of that Court in Allahrakha's case (PLD 1972 Kar. 215) was not noticed but it may be stated with respect that the judgment in Allarakha's case does not take notice of the very aspects highlighted above and enunciation in Ark Navigation Company's case is the correct interpretation of law. This view is also supported by recent decisions of Indian Courts. Reference may be made to the judgments in Rameshroy and another v. Paghupata Kumar Phatak and another (AIR 1968 Pat.1) and Chegon Vintaka Randes v. Bonam Lal Channu and others (AIR 1966 And. Pra.277). In the first mentioned case, it was observed that the contrary view earlier taken in some cases should be taken to have been overruled by the Indian Supreme Court in Vijai Pratap Singh's case (AIR 1962 SC 941).
' For the reasons aforesaid, this petition is without any force and is dismissed with no order as to costs.