(1) This revision petition is directed against an order made by the Civil Judge ordering payment of interim maintenance to the respondent who made an application for permission to sue as a pauper. In the application presented by her which contained all the particulars which have to be stated in a plaint, she sought a decree for the cancellation of three gift deed executed by her husband who is defendant 1 in favour of defendants 2 to 5. Defendants 2 and 3 are the brother's sons of defendant 1. Defendant 4 is his sister's son and defendant 5 is the plaintiff's brother. In the alternative, she asked for a decree for maintenance. During the pendency of this application, defendant 1 died on December 5, 1965 and the respondent in this revision petition made an application for interim maintenance. The Civil Judge directed payment of a sum of Rs. 80 a month as interim maintenance.
(2) The principal contention in this revision petition is that since the proceeding which was pending before the Civil Judge was not a suit but only an application to sue as a pauper, there was no jurisdiction in him to make an interim order such as the one made by him. It was said that an application for interim maintenance could be presented only in a properly constituted suit and since there was none, the Civil Judge had no power to direct the payment of interim maintenance.
(3) The question in this form was not raised before the Civil Judge and since the respondent has not appeared and is not represented by counsel, Mr. V. Krishna Murthy at my request advanced arguments on her behalf as amicus curaie. I must express my beholden ness to him for his assistance.
(4) The two questions which arise in this revision petition are; firstly whether the application for permission to sue as a pauper is a proceeding in a suit; and secondly, whether even if it is not, the order made by the Civil Judge was possible under Section 151 of the Code of Civil Procedure. There is a divergence of views with respect to the question whether an application for permission to sue as a pauper commences a suit. The High Courts of Calcutta the former State of Mysore and Allahabad have been the view that until an application for permission to sue as a pauper is granted and admitted under Rule 8 of Order XXXIII of the Code of Civil procedure, a suit does not commence. This was the view expressed in Manorama Dasi v. Sabita Dasi. : AIR1951Cal357 , Thimmayya v. M. B. Sadasivappa, Air 1952 Mys 76 and Raj Narain Saxena v. Bhim Sen. : AIR1966All84 (FB). But a contrary view was taken by the High Courts of Madras, Bombay, Patna, Nagpur, Punjab and Hyderabad in Chidambaram v. Nataraja Mudaliar, Air 1939 Mad 80, Totaram Ichharam v. Dattu Mangu AIR 1943 Bom 143, Matuki Mistry v. Makakhya Prasad, : AIR1958Pat264 (FB), Channulal Semi v. Shama Ramacharan, Air 1955 Nag 259, Prem Singh Devi v. Sat Ram Das, Laxmi v. Ramaiah, AIR 1954 Hyd 97.
(5) It seems to me more reasonable to say that a suit commences when an application is presented for permission to sue as a pauper and there is no postponement of the acquisition of the status of a suit until the admission of that application under Rule 8 of Order XXXIII.
(6) Rule 1 of Order XXXIII provides that a suit may be instituted by a pauper subject to the other provisions in that order. Rule 2 directs the specification in that application of all the particulars which should be contained in a plaint. Rule 5 provides for the rejection of an application, while Rule 8 provides for its admission.
(7) The provisions of Order XXXIII which do not speak of a suit instituted otherwise than by the presentation of an application, make it clear that that application is the plaint and that the request for permission to sue as a pauper is one of the prayers in the plaint produced by a plaintiff when he institutes a suit as a pauper under Rule 1. If that prayer is refused under Rule 5, the suit comes to an end, unless the plaintiff offers to pay the court-fee and continues it; and similarly when the application is admitted under Rule 8, the suit continues. That is the correct view to take is indicated by the explanation to Section 3 of the Limitation Act, 1908, which reads:
'3.....Explanation :--A suit is instituted in ordinary cases, when the plaint is presented to the proper officer: in the case of a pauper when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the Official Liquidator.'
Rule 2 which directs that every application for permission to sue as a pauper shall contain all the particulars which a plaint should contain, and, which are enumerated in Rule 1 of Order VII of the Code of Civil Procedure appears after Rule 1, and Rule 1 reads:
'1. Suits may be instituted in forma pauperis;--Subject to the following provision, any suit may be instituted by a pauper.'
So, the sequence in which these two provisions appear, make it plain that the application for permission to sue as a pauper is to be made in the suit instituted by the pauper under Rule 1, and, there is no machinery provided by the Code for its institution except by the presentation of an application which in reality is the plaint in that suit. The proceeding which so commences under its provisions, is, the suit, and, the prayer for permission to sue as a pauper is one of the prayers in the plaint.
(8) That this is the correct view to take was the subject matter of enunciation by the Judicial Committee as early as in Stuart Skinner v. William Orde, (1876-80) 6 Ind App 126 (PC) That was a case in which an application was presented for permission to sue a pauper during the pendency of which the plaintiff gave up the request for such permission and paid the court-fee on the plaint. The view of the High Court that the suit commenced only when the court-fee was paid in that way, was not acaccepted by the Judicial Committee which was of the opinion that the suit commenced when the application was presented for permission to sue as a pauper
(9) Sir Montague E. Smith who delivered the judgment of the Judicial Committee said this:
'Now a petition to sue in forma pauperis contains all that a plaint is required to do. By Section 300. 'The petition shall contain the particulars required by Section 26 of this Act in regard to plaints, and shall have annexed to it a schedule of any moveable or immoveable property belonging to the petitioner with the estimated value thereof, and shall be subscribed and verified in the manner hereinbefore prescribed for the subscription and verification of plaints. Therefore it contains in itself all the particulars the statute requires in a plaint. And plus those a prayer that the plaintiff may be allowed to sue in forma pauperis'
In refutation of the postulate that the plaint which is thus produced becomes transformed into a plaint only when the application for permission to sue as a pauper was granted, his Lordship observed:
'The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it.'
The provisions of section 300 of the old Code correspond to Rule 2 of Order XXXIII of the new Code and Section 26 corresponds to Rule 1 of Order VII. What becomes clear from the elucidation made by the Judicial Committee is that when the application is presented for permission to sue as a pauper, that application which contains all the particulars which are to be stated in the plaint is really a plaint and when the application is admitted under Rule 8, it becomes liberated from the objection that the suit could have been instituted only on payment of Court fee. At that stage what happens is the removal of that objection and no more.
(10) The view expressed in this decision of the Judicial Committee that the application for permission to sue as a pauper is a plaint, which in addition incorporates a prayer that the plaintiff should not be called upon to pay any court-fee, was in effect as accepted by the Supreme Court in Vijay Pratap Singh v. Dukh Haran Nath, : AIR1962SC941 . What was explained by the Supreme Court reads:
'An application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit by a pauper without payment of the fee prescribed by the Court-fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by O. 33 of the Code of Civil Procedure is presented.'
That was a case in which one of the defendants to the application for permission to sue as a pauper asked for his transposition under Rule 10 of Order 1 as an applicant and the objection to the grant of that application on the ground that the suit had not yet commenced was negatived on the ground that the application itself commenced the suit.
(11) The view expressed by the Judicial Committee was the foundation of the decision of the High Courts of Madras and Bombay in AIR 1939 Mad 80 and in AIR 1943 Bom 143. In the Madras case, the plaintiff who made an application for permission to sue as a pauper asked for the appointment of a Commissioner for the preparation of an inventory and the objection that that commissioner could not be appointed since there was no pending suit, was overruled by Gentle J. who proceeded on the basis that the application for permission to sue as a pauper was what commenced the suit.
In the Bombay case, the appointment of a commissioner for the discovery of jewellery hidden underground by the defendants in a particular suit, was granted in similar circumstances and on the same principle. The decisions of the High Court of Patna, Nagpur, Punjab and Hyderabad in : AIR1958Pat264 , AIR 1955 Nag 259, and AIR 1954 Hyd 97 rest on the enunciation made by the Judicial Committee in (1878-80) 6 Ind. App. 126 (PC) that the prayer for permission to sue as a pauper is only one of the prayers in the plaint.
(12) In my opinion, if I may say so with respect, that view rests upon a sound statement of the law supported as it is by the elucidation made by the Supreme Court in : AIR1962SC941 .
(13) From the contrary view expressed in the Full Bench decision of the Allahabad High Court in : AIR1966All84 (FB) I respectfully dissent. It seems to me that that view is not based on a proper comprehension of the very clear statement of the law made by the Supreme Court in : AIR1962SC941 . The decisions of the High Courts of Calcutta and the former state of Mysore in : AIR1951Cal357 and AIR 1952 Mys 76 do not contain an adequate discussion of the various facets of the question such as those to which I have referred in the course of this judgment. In neither of them is there any reference to the decision of the Judicial Committee in (1878-80) 6 Ind App. 126 (PC).
(14) Further, it will be interesting to observe that the Calcutta High Court was however of the view that although in its opinion a suit does not commence when an application for permission to sue as a pauper was presented, there was nevertheless inherent power created by Section 151 of the Code of Civil Procedure in the exercise of which an injunction may be granted even at that stage.
(15) I do not, therefore, accept the contention of Mr. Joshi that there was no pending suit before the Civil Judge in which he could make an order for payment of interim maintenance and in my opinion, there was one.
(16) But it was argued that no order for payment on interim maintenance was possible since in the plaint there was a claim for maintenance and that claim was not admitted. It was suggested that if there was no admission of liability to pay maintenance, no direction could be made for payment of interim maintenance and such a direction was possible only in the exercise of the power created by Rule 6 of Order XII of the Code of Civil Procedure. In support of this postulate, reliance was placed on the decisions in K.S. Subramonia Iyer v. Padmavathi Ammal, Air 1954 Trav-Co 123 and Mahomed Abdul Rahman v. Tajunaisa Begum : AIR1953Mad420 .
(17) Both these decisions proceeded on the assumptions that the power to direct payment of interim maintenance emanates exclusively from the provisions of Rule 6 of the Order XII of the code of Civil Procedure. What was overlooked, if I may say so with great respect in these decisions was that that power was also part of the inherent power created by section 151 of the Code of Civil Procedure, the exercise of which was to no extent controlled by Rule 6 of Order XII or any other specific provision in the Code. It is now firmly established as can be seen from the decision of the Supreme Court in Manoharlal Chopra v. Seth Hiralal, : AIR1962SC527 that the power created by section 151 is an independent power uncontrolled by the other provisions of the code. That power could be exercised even if there is another specific provision in the Code authorising an order such as the one which is sought under the section 151. The old view that an order which is authorised by a specific provision in the Code could be made only under that provision and that no appeal could be made to section 151 of the Code of Civil procedure when an application is made for such order, now stands displaced by the enunciation made by the Supreme Court in which it was explained that whether there is a specific provision or not, section 151 of the Code of Civil Procedure makes the Court the repository of the power to make all such orders as it considers necessary to do justice between the parties. So, it becomes clear that the decisions of the High Courts of Madras and Travancore and Cochin to which Mr. Joshi made an appeal cannot any longer be considered as good law.
(18) So the Civil Judge had undoubted power to direct the payment of interim maintenance. Now it is clear from the provisions of Section 28 of the Hindu Adoptions and Maintenance Act, 1956 and Section 39 of the transfer of Property Act that the right to maintenance in a proper case is not defeated by a gratuitous transfer by the person liable to pay maintenance. In the present case the defendants claim as donees from defendant 1, but the transfer to them was admittedly a gratuitous transfer and Mr. Joshi did not dispute that there was a liability to pay maintenance unless the defendants succeed in their contention that the defendant 1 had made sufficient provision for the maintenance of the plaintiff. The Civil Judge, was, therefore in my opinion, right in proceeding to the direct payment of interim payment in that situation.
(19) I am not impressed by the argument that the maintenance granted is excessive. The sum awarded to her is a small sum of Rs. 80 in a month and the payment ordered is subject to adjustment.
(20) The last submission of Mr. Joshi was that I should shift the date from which interim maintenance is to be paid to the date of this order I see no reason to do so.
(21) The order under revision is a preeminently reasonable order and I see no ground to disturb it. I dismiss this revision petition. But since the opposite side has not appeared, there will be no direction as to costs.
(22) Petition dismissed