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Munnu and ors. Vs. Smt. Shanti Devi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberC.R. No. 70 of 1968
Judge
Reported inAIR1973All59
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 2
AppellantMunnu and ors.
RespondentSmt. Shanti Devi
Appellant AdvocateS.L. Varma, Adv.
Respondent AdvocateS.P. Pathak, Adv.
DispositionPetition dismissed
Excerpt:
.....order 33, rule 2 of code of civil procedure ,1908 - application filed by opposite party along with plaint for permission to sue as pauper - application contested on ground that opposite party not pauper - revision filed - held, details not necessary in application when plaint is filed with all necessary verified details along with application - at the very inception to sue as pauper. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not..........procedure code as it was not framed in accordance with rule 2 of order xxxiii civil procedure code. rule 2, it is pointed out provides that an application for permissionto sue as a pauper shall contain the particulars required in regard to plaints in suits, a schedule of any moveable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. the argument is that the application for permission to sue neither contained the particulars required in regard to plaints in suits nor any schedule of immovable property belonging to the applicant. reference is also made to rule 8 of order xxxiii, civil procedure code which provides that.....
Judgment:
ORDER

O.P. Trivedi, J.

1. The opposite party filed an application under Order XXXIII, Rule 2, Civil Procedure Code for permission to sue as a pauper. She also attached a separate plaint to her pauper application claiming partition of a house and a shop valuing her share at Rs. 26,000/- and odd. This application was contested by the present petitioners before the lower court on the ground mainly that the opposite party was not pauper. The lower court found that she was a pauper and allowed her to sue as pauper. It is against this order that this revision has been filed.

2. The main argument of the learned counsel for the petitioners is that the application for permission to sue as a pauper under order XXXIII, Rule 2, Civil Procedure Code should have been rejected by the lower court under Rule 5, of Order XXXIII, Civil Procedure Code as it was not framed in accordance with Rule 2 of Order XXXIII Civil Procedure Code. Rule 2, it is pointed out provides that an application for permissionto sue as a pauper shall contain the particulars required in regard to plaints in suits, a schedule of any moveable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto and it shall be signed and verified in the manner prescribed for the signing and Verification of pleadings. The argument is that the application for permission to sue neither contained the particulars required in regard to plaints in suits nor any schedule of immovable property belonging to the applicant. Reference is also made to Rule 8 of Order XXXIII, Civil Procedure Code which provides that where the application is granted, it shall be numbered and registered and shall be deemed to be the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner. The argument proceeds that the particulars in regard to the plaint not having been mentioned in the application for permission to sue, it could not be converted into a plaint as required by Rule 8 of Order XXXIII, Civil Procedure Code and therefore, the application being defective, the court had no option but to reject the application for permission to sue under Rule 5 (a) of Order XXXIII, Civil Procedure Code.

3. I have heard learned counsel for the parties and I am of the view that this argument is not tenable in law. No doubt Rule 2 of Order XXXIII provides that the application for permission to sue shall contain the particulars required in regard to plaints in suits and that it shall also contain a schedule of movable and immovable property signed and verified as a plaint, but this rule, to my mind, applies only to those cases where the application for permission to sue has been filed at the very inception and not after or simultaneously with the filing of an ordinary plaint. When the plaint has already been filed as an ordinary plaint, then it is hardly necessary to incorporate the particulars of the plaint in the application for permission to sue and there will be substantial compliance with Rule 2 of Order XXXIII, Civil Procedure Code if the plaint contains all the necessary particulars and the same have been properly verified. In so far as the schedule of movable and immovable property is concerned also there was in this case, to my mind, a substantial compliance with Rule 2 inasmuch as the application for permission to sue under Order XXXIII, Rule 2, Civil Procedure Code contained a definite averment that the applicant-opposite party was not possessed of any immovable property other than the subject-matter of the suit, (which was detailed in the plaint) and the application contained a schedule of the property possessed by her in the schedule attached to the application. There was thus substantial compliance with the provision with regard to the frame of the application under Rule 2 of Order XXXIII, Civil Procedure Code and was not liable to be rejected on the technical ground that the contents of the plaintwere not repeated in the application for permission to sue. There being a substantial compliance the Court under its inherent power could direct continuance of the plaint which had already been filed and this in fact the lower court did by the order impugned in this revision. The view which I take is supported by a line of authorities of various High Courts.

4. In Ravji Patil v. Sakha Ram, (1884) ILR 8 Bom 615 on the presentation of a plaint it appeared that the plaint was not properly stamped. The plaintiff moved an application for permission to prosecute the suit in forma pauperis. The point was raised that the application not being in proper form was liable to be rejected. The objection was rejected and it was observed that the court may allow a suit to be continued as well it may allow one to be brought originally in forma pauperis, and it is not unusual for a man who begins a suit quite solvent to be reduced to insolvency before it is finished

5. In Thompson v. The Calcutta Tramway Co. Ltd., (1896) ILR 20 Cal 319 an application for leave to continue the suit in forma pauperis was opposed on the ground that the Code gave no power to the court to allow an application for a suit not instituted in forma pauperis to be continued. It was held that the power of the court to allow a suit to be instituted in forma pauperis includes power to allow a suit not so instituted to be continued in that form. Similar view was taken by the Patna High Court in Pokhan Gorain v. Bengali Gorain, 196 Ind Cas 40 = (AIR 1941 Pat 621).

6. In Subbarao v. Venkataratnam, 121 Ind Cas 857 = (AIR 1929 Mad 828) a suit for partition was filed and subsequently an application for permission to continue the suit in forma pauperis on the ground that the plaintiff was unable to pay heavy stamp duty was moved. The application was dismissed by the Subordinate Judge on the short ground that it was not in the form prescribed by the Code. It was held that in a case like the one it was open to the plaintiff to apply to continue the suit in forma pauperis and the court took the view that it was difficult to see how Rules 2 and 3 of Order XXXIII can apply to a case like that and they elaborated this view by pointing out that already there was a plaint registered and numbered, containing all the allegations which made it obvious that it was not possible to comply with the provisions contained in Rules 2 and 3 of Order XXXIII and that in the circumstances the court is competent to allow in exercise of its inherent power the party to continue the suit in forma pauperis.

7. Coming to more recent times tht Mysore High Court in A. V. Krishnappa Reddy v. Venkatappareddy, AIR 1954 Mys 148 expressed themselves similarly. In the case before them the suit was filed in the ordinary way followed by an application for permission to prosecute the suit in forma pauperis. There was an objection that theapplication not being in proper form was liable to be rejected under Rule 5, Order XXXIII, Civil Procedure Code. This objection was overruled with the following observation:

'The procedure in Rules 2-8 is essentially meant for applications instituted in forma pauperis at the inception. When a suit has already been registered in the ordinary way, and leave is asked for at later stage, it is obviously unnecessary to include a plaint as required under Rule 2. The Court in the exercise of its inherent power should dispose of the application on merits after notice to the opposite side.'

8. In sum, I hold that the application for permission to sue in forma pauperis was not liable to be rejected merely on the ground that a separate plaint had been filed and its contents were not incorporated in the application inasmuch as there was substantial compliance with Rule 2 of Order XXXIII. The petition is devoid of any merit and it is dismissed with, costs to the opposite party.


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