ESSO EASTERN INC. Versus ARK NAVIGATION COMPANY

ASLAM RIAZ HUSSAIN, J.‑ ‑Facts giving rise to the present case are briefly that on 11‑4‑1975, the respondents filed an application under Order XXXIII of the CPC in the High Court of Sind at Karachi, for permission to sue the present appellants in forma pauperis, without payment of court fee. This application was registered as Judicial Misc No. 40/75. It was first heard by the Registrar of the High Court on the original side who refused permission vide his order dated 29‑8‑1977. A reference was then made to the learned Judge of the High Court for its disposal. The learned Judge agreed with the Registrar and turned down the application vide his order dated 5‑11‑1977. Then about 41 days after the expiry of the period of limitation, the respondents filed a petition for leave to appeal (CPSLA No. K‑61 of 1979) before this Court. Leave was granted to them conditionally by this Court on 1‑9‑1980 subject to objections by the other side on the question of limitation. The appeal so admitted was numbered as Civil Appeal No. 301/80. The said appeal was heard on 30 and 31 of January, 1983. It was dismissed as barred by time. But on a separate application filed by the respondents (CMP No. D‑46/83) it was ordered in continuation of the order dismissing Civil Appeal No. 301/1980 that:

"The petitioner if he chooses to pursue the matter further by making payment of the court fee, if so advised, may do so by making an application under Order XXXIII rule 15 and section 148 CPC before the learned trial court. The question of limitation in the suit will also be decided by the said court after considering all available pleas to be raised by either side."

It was also observed that:

"We, however, remark that this court has concluded the question of application for suing as a pauper without dismissing it on merits the petitioner has lost the appeal in this behalf, only on ground of limitation."

Thereafter, in February, 1983, the respondents filed an application (CMP No. 775/83) under Sections 148 and 149 CPC in their earlier application (JM No. 40/75), before the High Court praying for six months time for payment of the court fee. Notice was issued to the present appellant who opposed the said application. The High Court, however, granted the said application vide its order dated 24‑10‑1983 and allowed three months time to the respondents for payment of the court fee and further ordered that if the court fee is paid by the respondents within that time, their application to sue in forma pauperis may be registered as a suit and further proceedings taken thereupon.

2. The appellants thereupon filed a petition for leave to appeal and leave was granted to them on 4‑6‑1984.

It was argued by the appellants' counsel before the Bench hearing the petition that the respondents were not entitled to continue the original application (JM No. 40/75) in forma pauperis since it had already been dismissed by the High Court and the appeal against the same had finally been dismissed by this Court as being barred by time. Leave was granted to consider this question.

3. The matter came up for hearing before us today.

Learned counsel for the appellants read out the following portions of the impugned judgment:‑

"Where however the court rejects the pauper application or refuses leave to sue in forma pauperis absolutely without allowing any time to applicant to pay the court fee under section 149 CPC and no prayer oral or written is made to the court at the time of passing and signing of the order then the court cannot by a separate and subsequent order allow time to the applicant under section 149 CPC to pay the court fee on the application.

"It, therefore, necessarily follows that in order to enable the court to pass an order under section 149 CPC allowing time to an applicant whose application is either rejected or refused by the court to pay the deficit court fee on the application, it must be shown that the court has not lost seisin of the case at the time the prayer is made by the applicant for time to pay the court fee."

He then adverted our attention to the following portion of the impugned order of the High Court:‑

"It cannot be doubted that the effect of admission of appeal by the Supreme Court was that the Whole matter was reopened before it and a prayer having been made by the applicant before that court to pay the court fee, the same could be granted by the Court. The Supreme Court, however, instead of deciding the aforesaid prayer of the applicant itself directed this court to deal with the same."

4. Learned counsel for the appellants submitted that since after the dismissal of the respondents application to sue in forma pauperis (JM No. 40/75) by the High Court in which its final dismissal by this court no matter was, left pending before the High Court in which an application under sections 148 and 149 CPC could have been made nor accepted. He submitted that it appeared that out of deference for this Court the High Court had interpreted this Court's order in CMP No. K‑16/83, dated 30/31‑1‑1983, reproduced in paragraph No. 1 above, to mean that it constituted a direction or permission to reopen the entire matter.

Learned counsel for the appellants submitted that in view of its expressed reference by this Court to Order XXXIII Rule 15 of the CPC‑it is evident that the High Court had not correctly understood the order of this Court dated 30/31‑1‑1983. As such the counsel sought clarification of this Court's order dated 30/31‑1‑1983 and prayed that the impugned order of the High Court be set aside.

5. After going through the orders in question as also after hearing the respondents who are present in person as well as the appellants' counsel we are inclined to agree with the latter and clarify that it was not intended by this Court's order dated 30/31‑1‑1983 that the old matter (JM No.40/75) which had been finally dealt with and dismissed both by the High Court as well as this Court, stood revised or reopened. The observations in this Court's order dated 30/31‑1‑1983 were only meant to permit the respondents to file a fresh suit, on payment of proper Court fee and that too subject to the objections by the other side regarding limitation.

6. As a result of the above discussion we allow the appeal and' set aside the impugned order of the High Court, with the above clarification. No order as to costs.

S.Q./E‑4/S Appeal allowed.