What is the remedy available to the applicant when the application for leave to sue in forma paupris is rejected?

Question: What is the remedy available to the applicant when the application for leave to sue in forma paupris is rejected?

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Answer

The leading case on the subject is the Privy Council decision in Stuart Skinner v. William Order 6 Ind App,126 (PC). Their Lordships of the Judicial Committee after, considering the provisions of the Code held:

“The intention of the statute evidently was that unless the petition was rejected, as it contained all the materials of the plaint, it should operate as a plaint without the necessity of filing a new one…..Is there anything in the Act which requires that in such a state of things the petition of plaint shall he rejected altogether and the plaintiff be compelled to commence de novo?

‘Their Lordships do not see their way to the middle course followed by the Court in holding that the petition was converted into a plaint from the date of the payment of the fees. To be logical they should have rejected it altogether.

The petition of plaint was placed upon the file and numbered… and this is the plaint that is allowed to go on 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 has been placed upon it”.

Relying on the above dictum it has been held by the several High Courts that the application, to sue in forma pauperis is a composite document consisting of an unstamped plaint and an application for permission to sue in forma pauperis. Even in the case of an application for permission to sue as a pauper, if that application is rejected, it is not to be deemed as a rejection of the plaint as observed in Jagadeshwaree Debee v. Tinkarhi Bibi (1935) I.L.R. 62. Cal. 711.

It is open to the Court to grant permission to the applicant under Section 149 of the Civil Procedure Code to pay the deficit Court fees, and the suit may be ordered to be registered when such Court-fees are paid. In that case, the original application itself will be treated as the plaint and the suit as having been instituted on the date on which the application was presented.

Thus, if the application is rejected the plaint still remains and the court may, in its discretion while rejecting the application, allow the petitioner to pay the requisite fee, and in such a case the suit shall be deemed to have been instituted on the date of presentation of the application.

Now, an order rejecting the plaint under Order VII Rule 11 which was appealable as a decree, as defined in Section 2(2) of CPC, no revision consequently lies against that order.

Since the rejection of the application to sue as a pauper if rejected is not deemed as a rejection of plaint, the Madras High Court in Rarnayamma’s case, AIR 1954 Mad 880 held that the proper remedy available to such a plaintiff is to file a revision application against the order dispaupering him before his plaint is rejected and obtain a stay order from the High Court so that his plaint is not rejected, before the decision of the revision application.

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