- (1.)I.A.I. is an application under Section 5 of the Lim. Act for condonation of the delay in presenting an application to be allowed to appeal as a pauper. It has been filed in the following circumstances:- The Petitioner filed an application in the District Court, Shimoga, for permission to sue as a pauper against the Respondents. That application being rejected be paid Court-fee on the basis of the valuation given in the plaint which was thereupon registered as O. S. 20/50-51. The defendants challenged the value placed by the plaintiff on the suit and the adequacy of court-fee paid. A Commissioner Was appointed to value the items of property which were the subject matter of the suit. He submitted his report. This appears to have been lost sight of until after both parties adduced evidence in the suit and the case had been posted for final arguments on 20th August 1954. On that day, the Counsel for some of the defendants drew the court's attention to the fact that the plaintiff had not paid the requisite court-fee in conformity with the Commissioner's report. The Court thereupon posted the case to the next day to enable the plaintiff to file his objection to the Commissioner's report and for arguments on the question of valuation. Arguments were heard on 29-6-1954 and on 30-6-1954 orders were pronounced directing the plaintiff to pay deficient court-fee on a sum of Rs. 55,000/- by. 30-7-1954. Against this order, the Petitioner filed C. R. P. 449/54 on 17-8-1954. On 30th July 1954 the Court extended time for payment of deficient Court-fee till 10-8-1954. On that day the plaintiff filed an application praying for permission to continue the suit in forma pauperis, i.e., without payment of the deficient court-fee. This application was numbered I.A. XVII and was posted to the next day for the filing of objections and for arguments. Arguments were heard on 11-8-1954 and the case was posted for the pronouncement of orders on I.A. XVII to 12-8-1954. It is found from the order sheet in the suit that on 12-8-1954 not only were orders pronounced rejecting I.A. XVII but the suit itself was dismissed.
(2.)Against this order dismissing I A. XVII, the plaintiff preferred C. R. P. 541/54 on 13-10-1954. In regard to the dismissal of the suit itself the plaintiff preferred an application in this Court for permission to appeal as a pauper on 3-11-1954. As the period prescribed for preferring such an application is 30 days from the date of the decision and as it was filed 37 days beyond that period, the Petitioner filed I. A. I. i e., the application for the condonation of the delay under Section 5 of the Lim. Act. It is this application that is the subject matter for consideration now.
(3.)In support of the application, the Petitioner (Plaintiff) has filed an affidavit in which he seeks to explain the delay by stating that as soon as he became aware of the order on I.A. XVII, he applied for a copy of the order to prefer a revision petition to the High Court, that when, after obtaining the copy, he went to Bangalore to arrange for filing the Revision Petition he was told that it was also necessary to file an appeal as the learned District Judge had also dismissed the suit while dismissing I.A. XVII, that he was asked to obtain a copy of the decree along with another copy of the order on I.A. XVII, that he applied for the copies immediately and took steps to file the application for permission to appeal as a pauper as soon as practicable after he obtained the copies. The respondents have opposed the application for condonation of the delay stating that it is incumbent upon the Petitioner to explain every day's delay after the prescribed period, that the Petitioner must have become aware of the order of dismissal on the date of the order itself, that the first copy of the order obtained was received by the Petitioner on 21-9-1954 and even assuming that the petitioner and his Counsel were not aware that the suit had been dismissed on 12-8-1954 they should have be-come aware of the dismissal of the suit at least on 24-9-1954, that there is nothing to explain the inaction of the Petitioner between that day and 10-10-1954 when the Petitioner is stated to have gone to Bangalore to file a revision petition against the order on I.A. XVII arid that at the best it is a case of gross negligence and that the delay cannot be condoned in these circumstances.
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