The withdrawal of an application to sue as an indigent person does not automatically end the proceedings, and the plaint can be deemed to have been instituted on the date when the application to sue as an indigent person was first presented, as long as the request for payment of court fee is made at the same time.

Rajiv Sahai Endlaw, J.

.1. The question of procedure to be followed upon withdrawal of a prayer to sue as an indigent person, has arisen for consideration. The suit for partition of immovable properties and other reliefs, showing the valuation thereof for purposes of court fees and jurisdiction in excess of Rs. 20 crores was filed by the petitioner. A separate application under Order 33 Rule 1 CPC was also filed. The same was registered on 27th April, 1998 and inquiry in regard to the petitioner being an indigent person was ordered. The said inquiry remained pending and no progress was made therein. After it had been pending for nearly nine years, on 25th July, 2007 it was submitted by the counsel for the petitioner that the petitioner "has to withdraw the application under Order 33 Rule 1 CPC seeking declaration of the applicant as an indigenous person and he wants to proceed with the suit as a non indigenous person". Time was sought from the court for filing the court fees and for moving appropriate application to the said effect and to take steps in the suit. The matter was adjourned to 8th January, 2008.

2. Before the next date IA. No. 185/2008 under Sections 148/149 and Section 151 CPC was preferred for enlargement of the time for filing the court fees. This Court vide order dated 8th January, 2008 allowed the said application and gave three months more time to the petitioner for depositing the court fees.

3. The petitioner, however, failed to deposit the court fees and when the matter came up next on 18th July, 2008 it was orally submitted that the petitioner had been unable to pay the entire court fees of about Rs 20 lacs. The petitioner offered to pay the court fee of Rs 5 lacs immediately and sought extension of time for payment of the balance court fees. The petitioner was directed to deposit the court fees to the extent of Rs 5 lacs within two weeks and was granted further time of six months to deposit the balance court fee.

4. The court fee of Rs 5 lacs was deposited. When the matter came up next before the court on 22nd January, 2009, yet again time was sought for making up the deficiency remaining in the court fee. On 17th February, 2009, the petitioner was granted further time of 30 days to make up the deficiency and it was further ordered that upon the failure of the petitioner, the plaint shall stand rejected under Order 7 Rule 11 CPC.

5. The petitioner has till date not made up the deficiency. On 20th April, 2009 the counsel for the respondents submitted that upon the petitioner withdrawing the prayer to sue as an indigent person, there was no proceeding pending before the court and no further time could be given and has been wrongly given in the past, for payment of court fee. It was contended that upon the application for suing as an indigent person being withdrawn or being dismissed, the proceedings came to an end and if at all the petitioner is desirous of suing as a non indigent person an independent suit has to be instituted. The matter was thereafter posted for today for arguments of the counsel for the petitioner on this aspect.

6. Thus the question which has arisen for consideration is as to whether the present proceedings came to an end on 25th July, 2007 when the petitioner withdrew the prayer to sue as an indigent person or whether the suit filed in forma pauperis can be converted into an ordinary suit and time given to the petitioner for making up the deficiency in court fee.

.7. The counsel for the respondents has relied upon Ma Saw Yin v. S.P.K.A.A.M. Firm AIR 1937 Rang 185 holding that when the application for leave to sue as a pauper is rejected the proceeding before the court are terminated completely and the plaint filed in forma pauperis can be considered as the plaint only if leave is granted to sue in forma pauperis It was further held that upon leave to sue as an indigent person being refused, the only course available to the applicant in such event is to pay court fees and ins