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Raj NaraIn Saxena Vs. Bhim Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1292 of 1961
Judge
Reported inAIR1966All84
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 33, Rules 5 and 6; Zamindari Abolition and Land Reforms Act
AppellantRaj NaraIn Saxena
RespondentBhim Sen and ors.
Appellant AdvocateYashodanandan, Adv.
Respondent AdvocateG.R. Jain, Adv.
DispositionApplication allowed
Excerpt:
civil - pauper suit - order 33 rules 5 and 6 and section 151 of code of civil procedure, 1908 - application filed to sue as pauper - objections filed by opposite party on the ground of valuation of relief, jurisdiction of trial court and limitation - held, objections by opposite party are maintainable. - 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 a school recognised by any such board comparable to the divisional board or the.....m.c. desai, c.j.1. this revision has been referred to a full bench by our brothers oak and seth who were of opinion that a decision of a division bench of this court in nur muhammad v. jamil ahmad, air 1919 all 213, requires reconsideration.2. there is no controversy about the facts in the case. opposite party no. 1, who being the contesting opposite party will be referred to as the opposite party in this judgment, filed against the applicant a suit as a pauper under order 33 of the code of civil procedure by applying for permission to sue as a pauper in thecourt of a munsif. the application was apparently in proper form and was presented by the opposite party in person. under rule 1 of order 33 any suit may be instituted by a pauper and under rule 2 every application for permission to.....
Judgment:

M.C. Desai, C.J.

1. This revision has been referred to a Full Bench by our brothers Oak and Seth who were of opinion that a decision of a Division Bench of this Court in Nur Muhammad v. Jamil Ahmad, AIR 1919 All 213, requires reconsideration.

2. There is no controversy about the facts in the case. Opposite Party No. 1, who being the contesting opposite party will be referred to as the opposite party in this judgment, filed against the applicant a suit as a pauper under Order 33 of the Code of Civil Procedure by applying for permission to sue as a pauper in theCourt of a Munsif. The application was apparently in proper form and was presented by the opposite party in person. Under Rule 1 of Order 33 any suit may be instituted by a pauper and under Rule 2 every application for permission to sue as a pauper must contain the particulars required in regard to plaints in suits and under Rule 3 it must be presented 'to the Court' by the applicant in person. Where an application is in proper form and duly presented the Court is authorised to examine the applicant regarding the merits of his claim of his pauperism, vide Rule 4, but if it is not framed or presented as laid down in Rules 2 and 3 or the applicant is found to be not a pauper or (d) 'where his allegations do not show a cause of action' or he has done certain acts, the application must be rejected, vide Rule 5. This Court has added an explanation to this rule to the effect 'an application shall not be rejected under Clause (d) merely on the ground that the proposed suit appears to be barred by any law.' Where it is not rejected under this provision the Court must fix a date for receiving the applicant's evidence in proof of his pauperism and evidence which may be adduced in disproof thereof. On the day so fixed

'the Court shall examine the witnesses produced by either party...... and shall alsohear any argument. .... .and. .... .then eitherallow or refuse to allow the applicant to sue as a pauper', vide Rule 7.

Where the application is granted 'it shall be numbered and registered, and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner', vide Rule 8. Rule 15 lays down that an order refusing to allow an applicant to sue as a pauper bars a subsequent application of the like nature but he is at liberty to institute a suit in the ordinary manner provided he pays the costs of the State Government and the opposite party. The opposite party valued the claim at Rs. 3,350 and alleged in his application that he was not possessed of sufficient means to pay the court-fee payable on this valuation. The learned Munsif did not reject the application under Rule 5, and fixed a date for receiving evidence and gave notice to the applicant. The applicant appeared before the learned Munsif on the date fixed and filed an objection contending that the opposite party was not a pauper, that he had undervalued the relief, that the suit was beyond the pecuniary jurisdiction of the learned Munsif because the real value of the relief was more than Rs. 5,000 and that the jurisdiction of the learned Munsif was barred by the Zamindari Abolition and Land Reforms Act. The learned Munsif refused to entertain the objection about his jurisdiction; he held, relying upon AIR 1919 All 213 (supra) and other cases, that he had no jurisdiction to go into those questions while considering whether the opposite party should be permitted to sue as a pauper or not. He held that the opposite party was a pauper and permitted him to sue as such and registered the application as a plaint.

3. The applicant applied to this Court under Section 115, C. P. C. to revise the above orderof the learned Munsif. The application came up for hearing before our brother Pathak, who doubting the correctness of the decision of this Court in the ease of Nur Muhammad, AIR 1919 All 213, referred the matter to a Division Bench and the Division Beach has referred it to a Full Bench.

4. I may also deal at this stage with what happens in an ordinary suit. Under Section 6 of the Code of Civil Procedure no Court has jurisdiction over a suit, the amount or value of the subject-matter of which exceeds its pecuniary limits. Section 15 requires every suit to be instituted in the Court of the lowest grade competent to try it. Under Section 26, every suit must be instituted by the presentation of a plaint or as laid down in Order 38. Section 6 of the Court-fees Act provides that no plaint or application which must be charged with court-fees 'shall be filed, exhibited or recorded in any Court. . . ., unless in respect of such documentthere be paid a fee of an amount not less than that' mentioned in the schedules attached to the Act. Section 3 of the Limitation Act lays down that

'every suit instituted. .... .and applicationmade, after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has not been set up as a defence'.

According to the explanation, a suit is instituted in an ordinary ease when the plaint is presented to the proper officer and in the case of a pauper, when his application for permission to sue as a pauper is made. The rules regarding plaints are contained in Order 7 of the Code of Civil Procedure. A plaint must contain, inter alia, the facts constituting the cause of action and when it arose, the fact showing that the Court has jurisdiction, the relief and a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees.

If the facts show that the cause of action arose so early that the period of limitation for a suit on its basis expired before the plaint was presented it is the duty of the Court itself to reject the plaint at once, under Section 3 of the Limitation Act. If the suit is barred by time it has no jurisdiction to take any further action. Since in the case of a pauper suit it is filed when an application for permission is presented under Order 33, Rule 1 it can, and ought to, be rejected straightway if the suit was on the date of its presentation barred by time. Under Order 7, Rule 10 a plaint 'shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted'. Since a pauper suit is instituted by presenting an application for permission and since that application itself is deemed to be a plaint (though only on its being granted) some High Courts have held that the application can itself be returned to be presented to the Court in which it should have been instituted. If it be said that Rule 10 of Order 7 can be applied only after an application for permission has matured into a plaint under Rule 8 of Order 33 and that so long as it has not matured into a plaint it cannot be treated as a plaint and, therefore, cannot be returned for presentation to the competent Court, the only consequence would be that the application will have to be rejected. The provision in Rule 10 of Order 7 is a concession to the plaintiff; instead of the plaint being rejected it is allowed to be returned to him so that he may present it to the competent Court. If Rule 10 did not exist the Court would be bound to reject the plaint. Every authority is bound to see that it has the power which it is asked to exercise. A statutory authority has only these powers which the statute has conferred upon it and has no jurisdiction to exercise any other power. It is not open to the parties to confer any power upon it and it does not become authorised to exercise a power merely because a party applies to it for its exercise. If it cannot exercise it, it must refuse to exercise it. So it is for it to determine before it exercises the power that it possesses it. No statutory provision is required for its doing so; it is its inherent jurisdiction.

Therefore, if a Court has no power to entertain a suit it must refuse to entertain it and reject the plaint (in the absence of a provision authorising it to return it for presentation to the competent Court). If Rule 10 of Order 7 does not apply to an application for permission the application must be rejected if the Court to which it is presented has no jurisdiction over the suit. Rule 11 requires a plaint to be rejected when it does not disclose a cause of action, when the relief claimed is undervalued and the plaintiff has failed to correct it within the time fixed by the Court, when it is properly valued and the plaint is not sufficiently stamped with the court-fee or when the suit appears from the statements in the plaint itself to be barred by any law. Because of the provision in Section 3 of the Limitation Act and the provision in Rule 10 there is no provision about a plaint being rejected on the ground that the suit is barred by time or that the plaint is presented in a Court having no jurisdiction. Only a plaint is to be rejected when the suit appears from the statement itself to be barred by any law but the fact that this Court has added an explanation to Rule 5 of Order 33, which deals with rejection of an application for permission, does not mean that in its view an application for permission is a plaint. The object behind the explanation appears to make it clear that being barred by any law does not amount to absence of a cause of action within the meaning of Clause (d) of Rule 5. There is no mention in Rule 5 that an application for permission can be rejected on the ground that the Court has no jurisdiction because every plaint, appeal or application is liable to be rejected on the ground of want of jurisdiction as already explained.

No statutory provision is required at all for an authority refusing to exercise jurisdiction not vested in it; a statutory provision would be required only if it had not to reject a plaint, appeal, application, etc., on the ground of want of jurisdiction but to return it. Rule 5 does not contain an authority for rejecting an application for permission on the ground that it is barred by time because Section 3 of the Limitation Act contains the required provision. Moreover, there isSection 151 in the Coda preserving the inherent power of the Court

'to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.' This expressly authorises a Court to make such orders as it considers necessary for the ends of justice or prevention of abuse of the process of the Court. A Court can make any order even though not provided in the Code, the only condition being that it is necessary for the ends of Justice or prevention of abuse of the process of the Court. The provisions of the Code are generally meant to serve the ends of justice but in their very nature they cannot reach all possible circumstances that can exist and there are bound to be no provisions dealing with some of the circumstances. Also some of the provisions may result in abuse of the process of the Court. Consequently every Court has the inherent power, recognised by Section 151, to make any orders that it considers necessary for the ends of justice or preventing abuse of the process of the Court. The Code cannot, and does not even purport to be exhaustive and hence the residuary power has been conferred upon the Court through recognition of its inherent power. With this residuary power the Code is now exhaustive; for circumstances which are likely to exist frequently or can be contemplated there are express provisions; for others there is the inherent power of the Court. The existence of the inherent power pre-supposes that any order that is not prohibited is within the competence of the Court. Any order not prohibited by the Code can be made by a Court; if it is expressly provided for it is made by virtue of that authority and if it is not expressly provided for it is made because of its being necessary for the ends of justice or prevention of abuse of the process of the Court.

I respectfully adopt the statement of Mahmood, J. in Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB), that

'Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law'

subject to only this condition that the procedure that is not provided for expressly by the Code must be justified on the ground of the ends of justice or of prevention or abuse of the process of the Court. In Gupteshwar Missir v. Chaturanand Missir : AIR1950Pat309 , Sinha, J., with whom Rai, J. concurred, said at p. 310 that

'it is true the Code is not exhaustive, but certainly it is exhaustive in matters specifically provided for'.

What is not exhaustive is the Code minus Section 151; since Section 151 contains the residuary power it necessarily followed that the power conferred by the remaining provisions is not exhaustive. It is also not correct to say that the Code is exhaustive in matters specifically provided for because even in respect of such matters the Court is left free to make a different order if it is necessary for the ends of Justice or prevention of abuse of the process of the Court. Consequently, Rule 5 cannot be said to be exhaustive of the circumstances in which an application for permission can be rejected; it can be rejected in other circumstances to secure the ends of justice or prevent abuse of the process of the Court and rejecting an application on the ground that the Court has no jurisdiction over it is rejecting it for the ends of justice and preventing abuse of the process of the Court. If the Court has no jurisdiction it would be abuse of its process if it is made to proceed on it. The only just order that can be passed on such an application is that of rejection. It is unusual for a legislature, when vesting a certain power in a particular authority, to enact an express provision that an authority other than it must reject an application for its exercise (on the ground of want of jurisdiction); obviously this is because the authority to which an application is made has inherent jurisdiction to refuse to exercise a power not vested in it.

I respectfully agree with what was said in Nand Kishore Singh v. Ram Golam Sahu, TLR 40 Cal 955, at p. 960. In Shamu Patter v. Abdul Kadir Rowthan, 39 Ind App 218, at p. 223 (PC), it was pointed out by his Lordship Ameer Ali that

'every Court trying civil causes has inherent jurisdiction to take cognizance of questions which cut at the root of the subject-matter of controversy between the parties' even in the absence of any provision in the Code.

5. It can hardly be disputed that an application for permission under Order 33, Rule 2 must be made to the Court which has jurisdiction over the suit. Not only is there no provision expressly stating which Court has jurisdiction to receive such application but also the words used in Rule 3 are 'shall be presented to the Court' suggesting that there has already been determined a Court to receive such an application. If a Court has been already determined to have jurisdiction to receive such an application it cannot be any Court other than the Court to which the plaint would be presented. The provision that the application itself is to be treated as the plaint on its being granted confirms that it is to be presented to the Court to which the plaint would be presented. Order 33 certainly does not contemplate that an application for permission may be presented to a Court other than the Court which would have jurisdiction over the suit or in which the suit can proceed. If a Court receiving a plaint has jurisdiction to determine whether it is authorised to receive it or not a Court receiving an application for permission also must have jurisdiction to determine whether it is authorised to receive it or not.

6. There has been a conflict of views regarding the nature of an application for permission before it matures into a plaint under Rule 8. One view is that it is a plaint, another is that it is a plaint plus an application for permission and third is that it is not a plaint but an application limpliciter. There are serious difficulties in calling it a plaint or a plaint plus an application. The legislature has, deliberately refrained from calling it 'a plaint'. Section 8 of the Limitation Act itself distinguishes an application for permission from a plaint. It is true that the legislature made the distinction when explaining how a suit is instituted within the meaning of Section 3 of the Limitation Act but it is the same legislature that enacted the Code of Civil Procedure in the same year. The nature of an application for permission was examined by the Judicial Committee of the Privy Council in Skinner v. Orde ILR 2 All 241 (PC). In that case the plaintiff filed an application for permission under the old Code but before it was decided he paid the court-fee and the question arose whether the limitation ran upto the date of the presentation of the application or upto the date on which the court-fee was paid. That was the only question before the Judicial Committee and it held that the limitation ran only upto the date of the presentation of the application. The then Code did not, and the present Code also does not, provide for payment of the court-fee during the pendency of an application for permission. The Judicial Committee had still no difficulty in deciding the question; the just order to make was that the application for permission was like a plaint on which no court-fee was paid at all. For this it relied upon the provision that an application for permission must contain the particulars required in a plaint and must be verified as if it were a plaint. It inferred the intention of the legislature to be that

'unless the petition was rejected, as it contained all the materials of the plaint, it should operate as a plaint without the necessity of filing a new one'.

Their Lordships saw no justice in requiring the Court to reject the application and compel the plaintiff-applicant to file a fresh suit. They also relied upon the absence of 'negative words in the Act requiring the rejection of the plaintiff under circumstances like the present, nor anything...... which would oblige their Lordships to say that this petition...... should not. .... .be considered as a plaint from the datethat it was filed'.

This supports what I said earlier that the ruleis that everything is permissible which is notprohibited.

Now this decision of the Judicial Committee is no authority for describing an application for permission as a plaint. The question whether during the hearing of the application it is a plaint or not did not arise before it. It became a plaint before it was rejected or disallowed or granted and the only question for the consideration of the Judicial Committee was with effect from what date it became a plaint An application for permission can become a plaint with retrospective effect and that is what it decided; it did not decide that it was at every moment a plaint. In Vijai Pratap Singh v. Dukh Haran Nath Singh : AIR1962SC941 , the Supreme Court held that a Court can pass an order under Order 1, Rule 10 even during the pendency of an application for permission and repelled the contention that such an applicationis personal to the applicant. It was in this connection that Shah, J. speaking for the Court said (at p. 945) that

'the suit commences from the moment an application for permission.... is presented, andOrder 1, Rule 10. .... .would be as much applicablein such a suit as in a suit in which court-fee had been duly paid'.

The learned Judge simply said what was said in Section 3 of the Limitation Act; he did not say any more than that provision, that an application for permission is a plaint. Order 1, Rule 10 requires a suit and not a plaint and the Supreme Court did not have to consider whether an application for permission is a plaint or not.

Referring to Rule 8 of Order 33, Hidayatullah, C. J., said in Channulal v. Shama, AIR 1955 Nag 259, at p. 261:

'This does not mean that there is only an application till the pauperism is established and there is really no plaint.

It only means that action on the plaint as such cannot be taken till the pauperism is established . As we read the Order, we are of opinion that in pauper suits, as their Lordships pointed out there is a plaint plus an application for permission......'

The reference to 'their Lordships' is to the observation of the Judicial Committee in ILR 2 All 241 (PC) which, as I have already explained, does not lay down that an application is always a plaint from the date of its presentation. There is no necessity of adopting me legal fiction that an application for permission is a plaint because it is not the law that a suit can be instituted only by presenting a plaint. Section 26 of the Code, to which I have already referred, does not treat institution of a suit by an application for permission as institution by presenting a plaint.

Bhandari, C. J., observed in Prem Singh Devi Ditta Mal v. Sat Ram Das , that an application for permission

'is in fact a plaint coupled with a prayer to be allowed to sue without payment of the required court-fee'

but the learned Chief Justice has not discussed the question. He held that a Court to which an application for permission has been made can go into the question whether it has jurisdiction over it or not and that on finding that it has not the jurisdiction it can return it for presentation to the competent Court. I respectfully agree about the Court's having jurisdiction but not about its power to return the application.

If an application for permission is presented to a Court which has no jurisdiction it is not presented in the manner prescribed by Rule 3 (because it is not presented 'to the Court') and can only be rejected as required by Rule 5 (a). The provision is mandatory and what must be rejected cannot be returned. The legislature has provided for return of a plaint on the ground of want of Jurisdiction and for refection of an application for permission on the same ground because of the essential difference that in the former case court-fee has been paid. An applicant does not incur any substantial loss by his application being rejected on the ground of want of Jurisdiction. Moreover, the rejection serves as a check upon deliberate overvaluingthe relief in order to claim to be a pauper. In Kanagammal v. Panchapakesa Odayar, AIR 1914 Mad 256 Sadasiva Aiyar, J. allowed an application for permission to be amended even before it became a plaint; what the learned Judge held was not that an application for permission is a plaint but that even as an application it can be amended by virtue of the provisions of Section 141 and also under Section 151. This is another decision, which supports the view taken by me earlier that Section 151 permits a Court to pass an order not provided for in the Code. In Chunna Mal v. Bhagwant Kishore : AIR1936All584 a Full Bench of this Court presided over by Sulaiman, C. J. held that an application for permission is not a plaint. The Full Bench had to consider the effect of rejection of such an application under Rule 5 on the ground that the applicant was not a pauper. It held that a Court while rejecting such an application has no jurisdiction to give time to pay the court-fee and that such an application cannot be treated as a composite document, e. g. a plaint plus an application because otherwise on the application being rejected there would still remain a plaint.

Where an application is rejected under Rule 5 nothing remains pending before the Court; this confirms that the application is not a composite document. There is no reason why a plaint should still remain in existence after such an application is rejected on the ground that it discloses no cause of action. On the other hand there is no reason why the plaint portion should be rejected in the circumstances mentioned in Clauses (c) and (e), which have nothing to do with the maintainability of a plaint sufficiently stamped. When Section 141, or in any case Section 151, is there, there is no justification for resorting to the legal fiction that an application for permission is a plaint or a composite document containing a plaint and an application. In Periyasami Padayachi v. Ulaganathan, AIR 1949 Mad 162 Yahya Ali J. concluded, Vide page 164, that 'an application for leave to sue in forma pauperis embodies a plaint and is for all practical purposes to be treated as a plaint' and that consequently interlocutory reliefs can be granted as if it were a plaint and as if the parties to the application were parties to a suit. Accordingly he allowed an application for permission to be returned for presentation to the competent Court. With great respect to the learned Judge I do not agree that to hold that such an application cannot be returned is opposed to, ILR 2 All 241 (PC) which I have already explained.

Further I have explained why it is not necessary to indulge in the legal fiction that such an application is a plaint and how the question whether it is a plaint or not is to be distinguished from the question whether there is a suit or not or whether what can be done during the pendency of a suit can be done during the pendency or such an application. In Es-waramma v. Chinna Kota Reddi, AIR 1949 Mad 417 Panohapakesa Ayyar, J. agreed with the above decision. In the case of Gupteshwar : AIR1950Pat309 (supra) Sinha and Rai, JJ. refused to accept an application for permissionas a plaint prior to its being granted and denied power in the Court to return it for presentation to the competent Court.

7. A decision given by a Court of no jurisdiction either granting or rejecting an application for permission is a mere nullity and the legislature could not have contemplated that a Court should deliberately pass an order which is a nullity. When it provided in Order 33 that the Court when proceeding on an application for permission must receive evidence for and against the claim of pauperism and then either grant the permission or refuse it, it obviously contemplated the Court having jurisdiction. All the provisions in Order 33 are meant for the Court haying jurisdiction; they are not meant for any Court to which an application for permission is made whether it has jurisdiction or not. The legislature did not contemplate that such an application can be made to any Court and that any Court in which it is made must follow the procedure laid down in Order 33. Rejecting an application for permission on the ground of want of jurisdiction or on the ground of bar of limitation is as much refusal to allow the applicant to sue as a pauper as rejecting it on any of the grounds mentioned in Rule 5. By Sub-rule (2) of Rule 7, the Court is required to consider any objection by the opposite party that the application is subject to any of the prohibitions contained in Rule 5. Rule 5 itself refers to rejection of an application on any of the prohibitions contained in it and, therefore, rejection of an application is included in the refusal 'to allow the applicant to sue as a pauper'. There is nothing in Rule 7 to indicate that after the issue of a notice an application cannot be rejected on the ground of want of jurisdiction. Moreover since Rule 3 itself contemplates that an application for permission must be presented to the Court of competent jurisdiction, presenting it to a Court of no jurisdiction is not presenting it 'in the manner prescribed by Rules 2 and 3 and it can be rejected straightway under Rule 5 (a) or at a later stage under Rule 7. Sub-rule (2) of Rule 7, expressly confers upon the opposite party a right to object to the jurisdiction of the Court over the application.

8. Whether the applicant is a pauper or not depends upon the amount of the court-fee payable on the plaint and the court-fee payable on the plaint depends upon its valuation. Consequently so lone as the valuation is not determined it cannot be determined whether the applicant is a pauper or not. A decision that he is a pauper or that he is not a pauper involves a decision of the valuation of the suit. When it is contended by the opposite party that the applicant is not a pauper because the valuation of the suit is less than what is stated in the application for permission the Court must go into the question and decide what is the correct valuation. Unless it does so it cannot hold that the applicant is a pauper. He may be a pauper when he is required to pay Rs. 500/- as court-fee but not when he is required to pay only Rs. 300/- as court-fee. I am dealing with a case in which the opposite party's contention is that the suit is overvalued out what I am stressingis that the Court has jurisdiction to go into the question of valuation when deciding a pauper application. If it has jurisdiction to go into aquestion of overvaluation there is no justification for holding that it has no jurisdiction to enter into a question of undervaluation.

9. If the opposite party is not permitted to raise the objection that the suit is undervalued and the Court grants the application first and then decides the question of valuation, finds that the suit was undervalued and returns the plaint for presentation to a higher Court its finding regarding pauperism does not operate as res judicata and all the proceedings conducted by it are void. I do not understand why the legislature would have permitted such a waste of time and labour. If the question of valuation has to be gone into obviously it must be gone into as early as possible so that there is no waste of public and private time and labour. Sinha, J. conceded in the case of Gupteshwar : AIR1950Pat309 (supra) that deferring the determination of the question of jurisdiction so long as the question of pauperism is not decided will lead to duplication of proceedings tinder Order 23, but brushed aside the argument based upon the duplication because such a contingency is rare inasmuch as applicants for permission are more prone to overvalue the relief than to undervalue it. The real argument is not whether anything can be done to avoid duplication but whether the legislature contemplated it at all or not. I respectfully disagree with the view of the learned Judges that the provisions of Order 33

'do not contemplate an enquiry into the valuation of the property in question with a view to determining whether the subject matter of a dispute was or was not within the pecuniary jurisdiction of the Court'.

There may be difficulty in reconciling an order returning an application for permission for presentation to the competent Court with the provisions of Order 33 but I do not apprehend any difficulty in reconciling rejection of such an application on the ground of want of jurisdiction (or of bar of limitation) with the provisions of Order 33.

The decision of the learned Judges was criticised by a Full Bench of the Patna High Court in Matuki v. Kamakhaya Prasad, AIR 1958 Pat 284 (FB). The anomaly created by disposing of an application for permission without disposing of the opposite party's objection either on the ground or jurisdiction or on the ground of valuation or of limitation is certainly not removed by requiring the Court to decide these questions provisionally on the basis of the statements made in the application. After all the statements made in the application are not going to bind the Court subsequently and can Be proved to be incorrect and then the Court's decision on the questions of jurisdiction, valuation or limitation will be found to be incorrect. If it is found to be incorrect all the time and labour spent by it on disposing of the application for permission would be in vain. Of course when a plaint is presented in an ordinary suit the Court is obliged to take the statements as correct and decide (provisionally) the question of jurisdiction, valuation and limitation. It has to decide on receipt of the plaint whether it has jurisdiction, whether the court-fee paid is sufficient and whether the suit is within time. Since at this stage the defendant is not before it and consequently there is nobody who can even contest the correctness of the relevant statements it is obliged to assume them to be correct; it cannot do anything else. This obligation does not exist when the would be defendant is present, as in a proceeding started on an application for permission. It does not matter in the least that he is present there not as a defendant to contest the suit but to contest the application for permission; the important fact is that he is present there to contest the statements made in the application and there is no justification now for saying that the Court should still proceed on the assumption that they are correct.

In Gupteshwar's case : AIR1950Pat309 (supra) the learned Judges observed at p. 312 that a question of valuation of pecuniary jurisdiction is more pertinently raised in the written statement to be filed after the application is granted but I find it difficult to understand the observation. In the case of Vijai Pratap Singh. : AIR1962SC941 (supra) the Supreme Court objected to the Court's finding, contrary to the statements in the application for permission, that it did not disclose a cause of action and thereupon refusing to apply the provisions of Order 1 Rule 10, Rule 5 Clause (d) expressly requires that the statements in the application itself should disclose no cause of action so that the application can be rejected. Shah, J. observed at pp. 943-44.

'By the express terms of Rule 5, Clause (d) the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The Court has not to see whether the claim made by the petitioner is likely to succeed. ... .... ... .in ascertaining whetherthe petition shows a cause of action the Court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits ...... . .. ., the jurisdiction of theCourt is restricted to ascertaining whether on the allegations a cause of action is shown; the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit.'

These observations do not mean that the Court cannot enquire into the question of valuation or jurisdiction and must take the relevant statements as correct. The statements that must be taken as correct are those regarding the merits of the claim and not those regarding the jurisdiction of the Court. It cannot be said that trial of an issue regarding valuation, jurisdiction or limitation must fairly be left for decision after the application is granted.

10. I have, therefore, no doubt that when the opposite party appears in reply to the notice issued under Rule 6 of Order 33 and disputes the correctness of any statement contained in the application relevant to the question of theCourt's jurisdiction or of the court-fee payable on the plaint or of limitation it must decide the dispute before deciding the question of pauperism so that if it finds that it has no jurisdiction over the suit or that it is barred by time it may reject the application.

11. The applicant does not suffer by the Court's deciding the dispute before deciding the question of pauperism; on the contrary it may be to his advantage. If his application is granted and then the Court decides that the relief was overvalued there is no provision to guide it in proceeding further. No provision answers the question whether the finding of pauperism should be quashed or not. On the application being granted there has come in existence a plaint on which no court-fee is payable and there is no provision for his being required to pay the court-fee now.

12. AIR 1949 Mad 162 (supra), and AIR 1949 Mad 417 (supra), and (supra), lay down that when an opposite party to an application for permission objects to the pecuniary jurisdiction of the Court the Court must decide objection at once and before deciding the question of pauperism.

13. Now I come to AIR 1919 All 213 (supra) in which Banerji and Pigott, JJ. set aside an order made by a trial Court returning an application for permission for presentation to the competent Court on the grounds that it was an application and not a plaint, that Order 33 contains no provision for return of an application for permission and that the order was without Jurisdiction. I have independently come to the view that an application which is not granted is not a plaint. Only a plaint can be returned for presentation to the proper Court. The question whether Section 141 C. P. C. allows an application to be returned for presentation to the competent Court was not considered by the learned Judges. They did not expressly or impliedly object to the trial Court's going into the question of its jurisdiction before deciding the question of pauperism; the only question discussed by them was whether the order of return was correct or not. It could be incorrect, as found by them, even though the trial Court could decide the preliminary objection about its jurisdiction.

14. In the result the application should be allowed, the order of the trial Court should bequashed and it should be directed to decide the applicant's objection, regarding valuation of the relief and jurisdiction of the trial Court. The trial Court should decide not only whether it has pecuniary jurisdiction over the suit but also whether its jurisdiction is not barred by the Zamindari Abolition and Land Reforms Act. The applicant should get his costs of this Court from the opposite party.


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