An order rejecting an application for leave to sue in forma paupris is a decree or an order?

Question: An order rejecting an application for leave to sue in forma paupris is a decree or an order? [U.P. H.J.S. 1996]

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Answer

Order XXXIII of the Civil Procedure Code, 1980 deals with the “Suits by paupers” Rule 15 of Order XXXIII runs as:

“An order refusing to allow the applicant for sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in an ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper”.

For according to the strict wording of the Code an ordinary suit is to commence with a plaint under Order VII and a pauper suit with a pauper application under Order XXXIII, Rule 15 of the latter envisages the filing of a fresh plaint in case the pauper application is rejected under Rule 5 or Rule 7. All the High Courts have taken the view that a suit commenced as an ordinary suit can be converted into a pauper suit and a pauper application can be converted into an ordinary suit without filing a fresh suit and the pauper application in the latter case will be deemed to be a plaint instituted on the date of filing the pauper 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. 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. Thus, the rejection of the application for leave to sue in forma paupris is not a decree but an order.

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