V.R. Nevaskar, J.

Question involved in this case at the present stage is whether the applicant, who had preferred this appeal in forma pauperis, can invoke the power of the Court under section 149 of the Civil Procedure Code for his being permitted to pay the court-fee requisite for the appeal.

Facts leading to the stage when the applicant submitted an application under section 149 of the Civil Procedure Code may be briefly stated as follows :-

Plaintiff Motilal filed a suit against defendant Shrinarayan for the recovery of certain ornaments or their value. The claim was valued at Rs. 60,055-8-0-During the pendency of this suit Shrinarayan died on 10-11-1949. Shrinarayan had by a will appointed trustees to look after his estate. The trust, it is said, was intended to be for charitable purposes. The trustees were therefore brought on record in place of the deceased defendant as his legal representatives. On 28-11-1949 an application for the grant of probate was made. The probate Court allowed the petition and ordered the grant of probate subject to conditions regarding security and court-fees. During the pendency of the probate proceedings, on the application of the trustees a receiver was appointed in respect of the property of deceased Shrinarayan. The receiver entered into possession of the property. After the petition for the grant of probate was allowed on 12-9-1951 the trustees submitted an application suggesting that necessary fees in respect of the probate might be taken out of the assets in the hands of the receiver and the probate be issued. This application was rejected. The trustees preferred appeal against that decision to the High Court. The appeal was allowed on 20-7-1953 and the High Court directed that the assets of the deceased might be made over to the trustees.

On 3-8-1953 the trustees submitted a petition for the delivery of the assets of the deceased held by the receiver. Another application to the same effect was filed on 13-8-1953. While these applications were pending consideration by the probate Court the suit filed by Motilal was decreed on 23-11-1953. Three days later another application was made to the probate Court by the trustees bringing to its notice the decree dated 23-11-1933 and praying for sanction of funds necessary for meeting expenses of an appeal to be preferred against that decree. The probate Court dismissed all the three applications on 11-1-1954. On the same day the applicant who is one of the trustees submitted an application for permission to appeal in forma pauperis and later on 5-2-1954 applied for condonation of delay in presenting the application under section 5 of the Limitation Act. An appeal was also filed against the order dismissing the application of trustees by the probate Court for delivery of assets and for sanction of funds to meet the expenses of appeal. On 30-8-1956 this latter appeal was allowed and the High Court directed that the trustees might be allowed to have necessary funds for the appeal. In pursuance of this the trustees got the funds on 31-10-1956. On 11-11-1956 the applicant submitted an application in the proceedings of appeal against the decree, which was at the stage of consideration regarding appellants pauperism, purporting to be under section 149, Civil Procedure Code, praying for being allowed to pay court-fee in appeal on the ground that the trustees had by then come to possess the necessary funds and that it was not necessary to pursue the application for leave to appeal in forma pauperis.

This petition for permission to appeal in forma pauperis was opposed on behalf of the opponents. It was contended that the application for permission to appeal was inherently defective. It was not signed, verified and presented by the applicant in person as required by law and was barred by time and that there was no sufficient cause made out for the delay in presenting the application. The application for being permitted to pay court-fee was also opposed.

Questions which arise for consideration are-

1. Was the application for permission to appeal in forma pauperis inherently defective on the ground of its not being signed, verified and presented by the applicant in person 1.

If the application was defective in the aforesaid particulars should the applicant be permitted to pay the court-fee at this distance of time

It is not seriously disputed by Mr. Barjatia before us that the application for permission to appeal in forma pauperis was inherently defective inasmuch as it was neither signed and verified by the applicant in person nor was accompanied by any list of properties. The application on the face of it contained an endorsement that it was presented by the clerk of Shree Indorilal Barjatia although an affidavit was later submitted stating that Shree Indorilals clerk was accompanied by the applicant-appellant Ramchandra Kankani. The application under section 5 of the Limitation Act stated as the reason for the delay that the applicant had applied for funds to the probate Court but that the same was rejected on 11-1-1954.

The application for permission to appeal in forma pauperis was defective in several particulars and the same was therefore liable to be rejected under Order 43, rule 1 read with Order 33, rule 5, Civil Procedure Code, even assuming that the presentation was good and there was sufficient cause for delay in presenting the petition.

The application under Order 43, rule 1, Civil Procedure Code, however, though defective, remained pending until an application-was made by the applicant on 11-11-1956 for his being allowed to pay court-fee.

It appears that the appellant came by the necessary funds on 31-10-1956. Therefore so far as his ability to pay the court-fee is concerned there was no mala fide on his part. The only question is what is the effect of his having submitted a defective application for permission to appeal in forma pauperis upon the present application. Whether the Court has power to permit him to pay court-fee at this distance of time and whether assuming that the Court has such power should the discretion be not exercised in his favour on the ground that the application for permission for appealing in forma pauperis was not bona fide it having been presented beyond time and not having been signed, verified and presented as an application to sue in forma pauperis.

In order to determine these questions we may first consider some of the decisions which have a bearing on the point under consideration.

The first important case which has a bearing on this case is the one reported in Skinner v. Orde 6 IA 126. In that case the facts were as follows:

Plaintiff, whose cause of action for possession of a share in an immovable property devised by a will arose on 27-4-1861, filed a suit in forma pauperis on 20-2-1873 in the Court at Meerut. The application was made bona fide as the plaintiff was not possessed of sufficient means to pay the court-fees then. This application was rejected, presumably on the ground of jurisdiction. Subsequently he filed a suit in Delhi Court which on 14-4-1873 ordered it to be admitted in forma pauperis but later the High Court in revision directed it to be presented to proper Court and was again presented at Meerut Court on 19-7-1873. While the question of pauperism was pending consideration in Meerut Court plaintiff paid court-fee on 27-11-1874. The trial Court held the suit to be barred by time on the ground that the suit should be deemed to have been instituted on the day the plaintiff paid proper court-fee. The High Court confirmed that decision. On appeal to the Privy Council the decision was reversed. It was observed by the Privy Council while considering this question at page 135 that-

Although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in the Indian Courts that a wrong stamp is put upon the plaint originally, and the proper stamp is afterwards affixed, The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp had been placed upon it.

This case, which is not provided for by the Act, approaches more nearly to the state of things contemplated by section 308 than that contemplated by section 310. There are no negative words in the Act requiring the rejection of the plaint under circumstances like the present, nor anything in its enactments which would oblige their Lordships to say that this position, which contains all the requisites which the statute requires for a plaint, should not, when the money has been paid for the fees, be considered as a plaint from the date that it was filed. It is obvious that very great injustice might be done if this were not to be the practice. There could hardly be a stronger instance of the mischief which might arise than what would have happened in this case. Their Lordships of course say nothing about the merits of the case. The claim may be utterly untenable, but on the assumption that the claim is a good one, nothing more unjust to the plaintiff could have happened than that he should have been deprived, by having done an act which is in itself meritorious, of the benefit which he would have had if he had been found to be a pauper. He was a pauper when his petition was filed. Supposing there had been any fraud found by the Judge, the considerations which would determine the judgment would then have been different.

It is clear from these observations that in the absence of mala fides where the plaintiff initially sues in forma pauperis but during the pendency of those proceedings pays court-fees then the suit for the purpose of limitation is deemed to have been presented not on the date when the court-fee stamps are paid but on the date when the application to sue as a pauper was first presented.

The principle of this decision has been followed in this Court. In Gopikishan v. Bulakhi Das AIR 1922 Nag. 160, Hallifax, Additional Judicial Commissioner, had to deal with a case the facts of which were as follows :-

The plaintiffs sued as reversionary heirs of one Anupchand who died in 1888 and whose widow died on 13-8-1905. The application for permission to sue as a pauper was filed on 13-8-1917 i.e. exactly on the last day of limitation. The pauperism of the applicants was denied. After the examination of some of the witnesses in the case plaintiffs on 9-8-1918 put in the court-fee stamps required for their plaint and the suit was registered. On these facts it was held that the suit should be taken to have been filed on 13-8-1917 and not on the date when the court-fee stamps were put in.

In a case reported in Jagannathpuri v. Nathoo : 12 NLJ 69 : AIR 1929 Nag. 268, it was held that where an application for leave to sue as a pauper has been dismissed on a finding that, the applicant was possessed of sufficient means to pay the court-fees and that the application had been made in bad faith, it cannot operate retrospectively for the purpose of calculation of the period of limitation.

It will be significant to note that in the earlier Nagpur case there was no finding as regards the mala fides of the applicant.

In Pratapchand v. Atmaram : AIR 1933 Nag. 237, it is held that no time can be granted under section 149 of the Civil Procedure Code after the rejection of the plaintiffs pauperism and at the time when there was no proceeding pending before the Court.

In Chudman Shamrao v. Babaji Daduappa : 1944 NLJ 429 : AIR 1944 Nag. 357, Bobde J., had to deal with a case in which the plaintiff had instituted a suit in forma pauperis on 12-3-1940. The trial Court made an order on 3-5-1941 under Order 33, rule 7 (3), Civil Procedure Code, refusing him to sue as a pauper but at the same time permitted him to pay the court-fee by 30-7-1941. Plaintiff paid the required court-fee on that date and the plaint was registered. The suit was resisted inter alia on the ground that on the day when the court-fee was paid the plaintiffs claim had become barred by time. It was held by the learned Judge that where the Court decides to reject the application under Order 33, rule 5, Civil Procedure Code or to refuse to allow the applicant to sue as a pauper under Order 33, rule 7, Civil Procedure Code, it may treat the application as an unstamped paper and either before or at the time of passing the order under rule 5 or rule 7, it may in its discretion under section 149, Civil Procedure Code allow the applicant time to pay the requisite court-fee and upon such payment within the time allowed the suit will be deemed to have been instituted on the day on which the application for leave to sue as a pauper was made. Reliance was placed on the decisions reported in Skinner v. Orde 6 IA 126, Mahadeo Gopal v. Bhikaji Vishram : AIR 1943 Bom. 292 and other cases in support of his view.

All these cases which have been discussed above relate to the stage of the suit in the trial Court. They do not refer to the stage of appeal. There are other decisions of the other Courts bearing on that question.

In Parbhu Narain Singh v. Jitendra Mohan Singh : AIR 1943 Oudh 458, there is a case reported which is somewhat akin to the present case. Appellant who was unsuccessful in the Court below preferred an appeal in forma pauperis. He subsequently obtained sufficient funds and was allowed to pay court-fees by the appellate Court in exercise of its powers under section 149, Civil Procedure Code. Court-fee was paid within the time allowed by the Court. On these facts it was held that the appeal must be considered to have been filed when the applicant preferred an appeal in forma pauperis and not when the court-fees were paid. It was observed that the only ground on which the question of limitation can successfully be pressed by the respondent in such a case is that the original application to appeal in forma pauperis is mala fide or fraudulent.

In the case reported in Mt. Kanwal Shri v. Babu Lal : AIR 1937 Lah. 819, facts were that a preliminary mortgage-decree was passed in favour of the mortgagee. The defendant mortgagor appealed in forma pauperis to the High Court. On 30-4-1936 her application to appeal in forma pauperis was dismissed as barred by time. On the same day she applied under section 151, Order 7, rule 11 and section 107 of the Civil Procedure Code for extending the time for paying court-fees on the memo, of appeal filed along with the application for leave to appeal in forma pauperis. On 12-6-1936 a Division Bench of the High Court permitted her to pay the court-fees by 29-6-1936. This was accordingly done. A preliminary objection thereafter was taken on behalf of the respondent that the appeal was barred by time because at the date of the order extending time there was no appeal before the High Court at all but an unstamped piece of paper the memo, of appeal and that under the circumstances there was no jurisdiction to extend time. It was held that the order of the Division Bench dated 12-6-1936 impliedly held that there was an appeal and that time should be extended up to 29-6-1936 and that this order not being ex parte bound both the parties.

In Travancore-Cochin State v. John Mathew AIR 1955 TC 209, a Full Bench of Travancore-Cochin High Court has held that there is no provision in the Code to the effect that when the permission to appeal as pauper is refused the memo, of appeal should be rejected. The appellate Court may in such a case instead of rejecting the application direct the applicant to pay requisite court-fees within a time fixed by the Court and that if the direction is complied with the memo, of appeal filed along with the application will render valid from the date when it was first filed along with the application for permission to appeal as a pauper.

In Muhammad Farzand Ali v. Rahat Ali AIR 1918 All 194 , a Division Bench of Allahabad High Court held that the rejection of an application for leave to appeal as a pauper is not the rejection of the appeal itself and it is therefore no ground for rejecting a subsequent application for permission to pay the full court fee on the appeal. This decision of the Division Bench has later on been confirmed by the Full Bench of the Allahabad High Court in Mt. Sahzadi Begam v. Alakh Nath and others AIR 1935 All. 620 (2).

In Mahadeo Gopal v. Bhikaji Vishram : AIR 1943 Bom. 292 , it was held by Broomfield and Lokur JJ., that even before deciding whether to grant an application for permission to sue as a pauper or not the Court may at any time during the pendency of the proceedings treat the application as a plaint and allow the applicant to pay the requisite court-fees and give up his request to be allowed to sue as a pauper. It was further held that even if the Court decides to reject the application under Order 33, rule 5, Civil Procedure Code or to refuse to allow the applicant to sue as a pauper under Order 33, rule 7, Civil Procedure Code it may treat the application as an unstamped plaint and either before or at the time of passing the order under rule 5 or rule 7 it may in its discretion under section 149, Civil Procedure Code allow the applicant to pay the requisite court-fees and upon such payment within the time allowed the suit will be deemed to have been instituted from the date when the application for permission to sue as a pauper was made.

It is clear from these decisions that where the matter is at the stage of suit and an application for permission to sue as a pauper has been made it is competent for the plaintiff to pay the court-fees during the pendency of that proceeding with the permission of the Court and upon the payment of such court-fees the suit is deemed to have been presented on that day when the application was first made. In cases of appeal where during the pendency of the proceeding of inquiry into the pauperism the applicant offers to pay the court-fees and applies under section 149 of the Civil Procedure Code for being permitted to do so it is competent for the Court to allow him to pay the court-fees where there are no mala fides and wherein pursuance of such permission the applicant pays the court-fees within time granted by the appellate Court the appeal is taken to have been presented on the date when the application for appealing in forma pauperis was made.

The decisions in Skinner v. Orde 6 IA 126 and Jagannathpuri v. Nathoo : 12 NLJ 69 : AIR 1929 Nag. 268, seem to suggest that fraud or mala fide referred to therein is the fraud in putting forward a false application by the applicant about his pauperism when in fact he is possessed of sufficient means to pay the court-fees.

There is difference among some of the High Courts as regards the applicability of section 149 of the Civil Procedure Code in a case where the application to sue as a pauper is rejected but in cases of appeals it is held that memo, of appeal is a separate document which is filed along with the application for permission to appeal as a pauper and even after the rejection of the application that document is not rendered nullity and that the Court has power under section 149, Civil Procedure Code to give further time for payment of requisite court-fees and on so doing admit the appeal as from the date the application for appealing in forma pauperis is made questions of mala fides apart.

It therefore seems clear that as long as the proceedings with regard to the pauperism of the applicant are not disposed of it is open for the Court, in exercise of its powers under section 149, Civil Procedure Code to allow him time to pay the requisite court-fees where the applicant does not seek such time mala fide or rather where the initial application for appealing in forma pauperis was not fraudulent or mala fide.

In view of this principle the question which we have to consider from the facts of the present case is as to whether the present application under section 149, Civil Procedure Code submitted by the applicant ought not to be granted on he ground that the initial application for appealing in forma pauperis was fraudulent.

Mr. Chitale for the respondent contends that inasmuch as the initial application had not been signed, verified and presented as required by law and further that the application was presented beyond time it should be held that the proceedings lacked bona fides.

There is no doubt that the application for permission to appeal in forma pauperis was defective in several particulars but does it indicate negligence or fraud. So far as the defects pertaining to presentation, signing and verification are concerned it is difficult to say that there is fraud although we might attribute negligence either to the applicant or to his counsel. The application also appears to be presented beyond time but there was an application for condonation of the delay and the ground set forth is that attempts were being made in the probate Court for securing the funds needed for filing the appeal and that it was only on 11-1-1954 that the applicant came to know that these funds would not be available and on the same day the appeal in forma pauperis was preferred.

In my opinion the position of the appellant in this case was precarious. The applicant was entitled to prefer an appeal as a trustee-defendant. There was property in the possession of the receiver who was under the control of the probate Court and after the grant of probate steps were taken for getting release of the proper funds for the purpose of preferring an appeal. Orders on this application were not passed till 11-1-1954 when the period for filing an application to appeal in forma pauperis had expired on 9-1-1954. There was, in my opinion, sufficient reason for being late and it cannot be said that the application presented on 11-1-1954 was not bona fide inasmuch as it was filed two days subsequent to the period of limitation provided for such an application. It cannot be disputed that it was only on 31-10-1956 that funds became available to the appellant for the purpose of paying the court-fees. It is also clear that till then the proceeding with regard to the pauperism was pending and had not come to an end. For these reasons the application submitted by the applicant on 12-11-1956 for permitting him to pay the court-fees by the exercise of the powers by this Court under section 149, Civil Procedure Code cannot be said to be improper. Nor can it be said that the initial application for appealing in forma pauperis was mala fide or fraudulent.

I am therefore clearly of the opinion that under the circumstances of the present case the applicant should be permitted to pay the requisite court-fees. He shall do so within a week from today. On payment of the requisite court-fees the memo, of appeal shall stand validated as from the date when it was first presented and the proceeding will be registered as an appeal and heard in due course.

T.C. Shrivastava, J.

I agree.

Application allowed.