JUGAL KISHORE versus DHANNO DEVI (DEAD) BY L.RS.

Citation: [1974] 1 S.C.R. 360 · Decided: 13-08-1973 · Supreme Court of India · Bench: D.G. PALEKAR · Disposal: Dismissed

Judgment (excerpt)

360 
JUGAL KISHORE 
A 
·• 
Y, 
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Civil Procedure Code-Pauper application subsequently withdrawn-Enlargement 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 pro-
ceeding 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, 
c 
D 
HELD : . (I) Since the suit under section 26 of the C.P.C. niay be institut-
E 
~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. 
c 
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 Cod

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