Ojha, J. - (1.) SMT . Rashida Khatoon, respondent, filed a composite plaint and an application to sue in forma pauperis on 14th March, 1969. The relief claimed was for cancellation of a sale deed dated 14th March 1967 and for recovery of damages in the alternative. The application for permission to sue in forma pauperis was rejected on 28th March 1970. The formal order rejecting the application was signed on 13th April 1970 and on the same date the Civil Judge permitted the plaintiff to make good the deficiency in court-fee by 30th April 1970. Subsequently, the plaintiff made an application for amendment of the plaint seeking to change the valuation of the suit. This application was allowed and the court-fee payable on the amended plaint was paid on 20th May, 1970. On payment of court-fee the case was registered as a suit. It was contested by the defendant appellant inter alia on the ground that after the dismissal of the application to sue in forma pauperis on 28th March 1970 the Civil Judge had no jurisdiction to grant time for payment of court-fee by 30th April 1970 and that the suit was not maintainable and liable to be dismissed. A further plea was raised by the appellant to the effect that the suit was barred by Order 33, Rule 15 of the Code of Civil Procedure. Among the issues framed Issue No. 5 was whether the plaint is not valid as alleged in para. No. 24 of the written statement and issue No. 7 was, whether the suit is barred by Order 33, Rule 15, Civil P. C. These two issues were decided by the Civil Judge as preliminary issues. The Civil Judge recorded a finding against the plaintiff-respondent on 18th December, 1972. On the same date by a separate order he dismissed the suit. The respondent filed an appeal. The District Judge allowed the appeal and after setting aside the findings of the Civil Judge on issues Nos. 5 and 7 remanded the suit for being decided on merits on other issues in accordance with law after recording evidence of the parties. Aggrieved against that order the defendant has preferred the present First Appeal From Order.
(2.) WHEN the First Appeal From Order came up for hearing before a learned Single Judge of this Court it was urged that in view of the decisions of this Court in Chunna Mal v. Bhagwant Kishore. AIR 1936 All 584 (FB) : Divendar Kumar v. Mahant Raghuraj Bharti, AIR 1955 All 154 (FB) ; Kalap Nath Singh v. Shyama Nand, AIR 1955 All 159 (FB) and Rai Narain v. Bhim Sen. AIR 1966 All 84 (FB), the Civil Judge after having dismissed the application for permission to sue in forma pauperis on 28th March, 1970 had no jurisdiction to grant time for payment of the court-fee on 13th April 1970, and that the Civil Judge was right in taking the view that the plaint was not a valid one. According to the learned counsel the District Judge acted illegally in setting aside the order of the Civil Judge. For the plaintiff respondent on the other hand, it was urged that in view of two subsequent decisions of the Supreme Court, one in the case of Vijai Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941 and the other in the case of Jugal Kishore v. Dhanno Devi. AIR 1973 SC 2508 the decisions of this Court relied on by the learned counsel for the appellant were no longer good law and the order of the District Judge accordingly did not call for any interference. The learned Single Judge being of the view that the matter required consideration by a larger Bench, directed the papers of the case to be placed before the Hon'ble the Chief Justice for constituting a larger Bench to hear the appeal. It is thus that the appeal has come up before us. As already indicated above the Civil Judge had recorded a finding against the respondent not only on issue No. 5 but also on issue No. 7 which was to the effect whether the suit is barred by Order 33, Rule 15, Civil P. C. The finding on this issue too has been set aside by the District Judge. Learned counsel for the appellant did not challenge the correctness of the finding of the District Judge on issue No. 7. He, however, as before the learned Single Judge, urged that in view of the various decisions of this Court referred to above the order of the District Judge on issue No. 5 was erroneous. Learned counsel for the respondent not only took up the same defence which had been taken up by him before the learned Single Judge but further submitted that in view of Section 13 of the Limitation Act, 1963 the order of the District Judge was valid and in accordance with law and the appeal deserved to be dismissed on that ground alone.
(3.) HAVING heard learned counsel for the parties we are of opinion that in the instant case it is not necessary to record any finding as to whether the various decisions of this Court relied upon by the learned counsel for the appellant can still be said to be operative in view of the two subsequent decisions of the Supreme Court relied on by the respondent inasmuch as the appeal can be disposed of on the alternative submission made on behalf of the respondent based on Section 13 of the Limitation Act. As was the view taken by this Court in the various decisions referred to above, so was the view taken by the Patna High Court in Lala Mistry v. Ganesh Mistry. AIR 1938 Pat 120 and Mathura Singh v. Smt. Sudama Debi. AIR 1954 Pat 170 where it was held that if an application to sue in forma pauperis is rejected and no order is passed by the Court at the time of such rejection that the application would be treated as a plaint and further time granted to pay the requisite court-fee, the Court has no jurisdiction on a subsequent date to order that the original application should be treated as a plaint and court-fee may be paid on the same. In Ramashrey Roy v. Pashupati Kumar Pathak. AIR 1968 Pat 1 (FB) an application for permission to sue in forma pauperis had been made in the year 1963 i. e. before the coming into force of the Limitation Act. 1963. It was, however, refected on 18th January 1964 i. e. after the said Act had come into force. Subsequently on 13th June 1964 an application was made for an opportunity being given to pay the court-fee. Permission was asked to amend the valuation of the disputed property. Court-fee on the amended valuation was also paid. The prayer for amendment of the valuation was allowed and the application was directed to be registered as a plaint. The defendants to the suit filed an objection which was however rejected. The defendant took up the matter before the Patna High Court in revision. The matter came up initially before a single Judge who referred it to a Division Bench which in turn referred it to a Full Bench. Before the Division Bench it was urged that in view of the decision of the Supreme Court in the case of Vijai Pratap Singh, AIR 1962 SC 941 (supra) and in view of Section 13 of the Limitation Act, 1963. AIR 1938 Pat 120 and AIR 1954 Pat 170, could not be said to be laying down correct law. The Division Bench, however, thought that since the cases referred to above were also Division Bench judgments it was desirable that the matter may be referred to a larger Bench. When the matter came up before the Full Bench the effect of Vijai Pratap Singh's case and Section 13 of the Limitation Act came up for consideration. Before deciding the controversy in issue it was pointed out. "I may, however, point out that the well-known rule of judicial comity that a Division Bench should if it is unable to accept as correct the principle laid down in an earlier Division Bench decision, refer the matter to a Full Bench is subject to certain well-known exceptions. As pointed out in Halsbury's laws of England, 3rd Edition Volume 22, paragraph 1967, pages 799-800 (which had been cited with approval in a judgment of the Supreme Court in Jaisri Sahu v. Raidewan Dubey. AIR 1962 SC 83 at p. 88), the Exceptions are as follows :- "(1) The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow : (2) the Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords (here Supreme Court) : (3) The Court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow and in the latter it is bound by the decision of the House of Lords. A decision may also be given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. A decision should not be treated as given per incuriam however, simply because of a deficiency of parties, or because the Court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake. Hence, if, as stated by the referring Division Bench, the earlier Division Bench judgments may not be correct in view of the decision of the Supreme Court in Vijay Pratap Singh's case, AIR 1962 SC 941 and also in view of Section 13 of the new Limitation Act, that Bench need not have referred this case to a Full Bench and could have disposed of these two revision petitions in the light of the principles laid down above." The Full Bench thereafter pointed out that since in that case the application for permission to sue in forma pauperis had been made before the coming into force of the Limitation Act 1963 the benefit of Section 13 of the said Act could not be availed of by the plaintiff in view of clause (b) of Section 31 of that Act which expressly lays down that any application which may be pending at the commencement of that Act will not be affected by the provisions of that Act. However, the Full Bench took the view that in view of Vijai Pratap Singh's case (supra) the view taken in AIR 1938 Pat 120 and AIR 1954 Pat 170 that a pauper application is not a composite document including a plaint cannot be taken as correct and that the principle laid down in the aforesaid two cases should to that extent be deemed to have overruled by the aforesaid decision of the Supreme Court. On this view the order passed by the Court below allowing the application to be amended and directing the plaint to be registered as a suit was upheld.;