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Moorti Shree Behari Ji Vs. Prem Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1516 of 1970
Judge
Reported inAIR1972All287
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 1
AppellantMoorti Shree Behari Ji
RespondentPrem Das and ors.
Appellant AdvocateChand Kishore, Adv.
Respondent AdvocateK.C. Agarwal, Adv.
DispositionRevision allowed
Excerpt:
civil - suing as pauper - order 33 and rule 1 of civil procedure code, 1908 - allegation on mahant regarding mismanagement of property - mahant pleaded that pauper has no authority to sue, diety not being a natural person - held, deity can very well sue as a pauper. - .....in my opinion. cannot be enquired into under order 33 of the c. p. code. it was the duty of the learned judge of the court below first to consider if the application of the deity for permission to sue in forma-pauperis could be rejected on any of the grounds mentioned in rule 5 of order 33. c. p. code and if not then to make an enquiry whether the deity was possessed of sufficient means so as to pay the court-fees 2. the deity through balramdas came before the court with the allegation, inter-alia. that mahant prem das had been mismanaging the endowed properties and had illegally alienated them to strangers. mahant prem das and the transferees were impleaded as defendants. 3. mahant prem das filed an objection against the application of the deity. inter-alia, it was alleged that the.....
Judgment:
ORDER

K.B. Asthana, J.

1. I think the court below was in error in making an enquiry into the questions Whether Balramdas through whom the deity as plaintiff sought permission to sue in forma-pauperis was competent to represent the deity and whether the deity could maintain a suit against the Mahant. Such questions, in my opinion. cannot be enquired into under Order 33 of the C. P. Code. It was the duty of the learned Judge of the court below first to consider if the application of the deity for permission to sue in forma-pauperis could be rejected on any of the grounds mentioned in Rule 5 of Order 33. C. P. Code and if not then to make an enquiry whether the deity was possessed of sufficient means so as to pay the court-fees

2. The deity through Balramdas came before the court with the allegation, inter-alia. that Mahant Prem Das had been mismanaging the endowed properties and had illegally alienated them to strangers. Mahant Prem Das and the transferees were impleaded as defendants.

3. Mahant Prem Das filed an objection against the application of the deity. Inter-alia, it was alleged that the deity under the law could not be declared as pauper as it was not a natural person and that it could not sue the Mahant and the transferees through Balramdas who, in law, could not act the next friend. It was also alleged that the deity was possessed of sufficient property to enable it to pay court-fees. The learned Civil Judge allowed the objections and dismissed the application of the deity for permission to sue in forma-pauperis without granting any time to the deity to pay the court-fees.

4. The plaintiff in the proposed suit was the deity and not Balramdas.On a reading of the plaint in the pro-Posed suit it cannot be said that it does not disclose a cause of action in favour of the plaintiff deity for the reliefs claimed in the suit. The learned Civil Judge, to my mind, unnecessarily entered into the controversy whether Balramdas was competent to be next friend of the deity, while considering the application under Order 33 of the C. P. Code. This would be a question which very properly could be agitated as defence to the suit after it was registered. An enquiry into such a question is not contemplated under Order 33 of the C. P. Code.

5. In coming to the conclusion that the deity being a juristic person and not a natural person, was not competent to sue as a pauper under Order 33 of the C. P. C. the learned Judge of the Court below relied upon a decision of the Judicial Commissioner of Manipur in the case of Radha Krishna Devata v. Nathamal Mohta, AIR 1963 Manipur 40. The learned Judicial Commissioner, as appears from the reported judgment, relied on a decision of the Punjab High Court in the case of Associated Pictures Ltd. v. National Studios Ltd., AIR 1951 Punj 447. The Punjab High Court in that case has taken the view that under Order 33 only a natural person is contemplated by the Explanation to Rule 1 and a company incorporated under the Companies Act not being a natural person would not be covered by the said Explanation. A Full Bench of our High Court in the case of Kundan Sugar Mills Amroha v. Indian Sugar Syndicate Ltd.. AIR 1959 All 540 (FB) has taken the contrary view. It has held that a limited company can take advantage of the provisions of Order 33 tf it otherwise fulfils the necessary requirements. It is clear that the law as laid down by our High Court permits a juristic person also to take the benefit of Order 33 of C. P. Code.

6. The question then that arises is why a deity who is juristic person and can sue or be sued through its Pujari, Shebait or any other person interested, cannot sue as a pauper? To my mind when an incorporated limited company has been held by this Court capable of sueing as a pauper, a fortiori it follows that a deity can also sue as a pauper. The learned Judge of the court below was in error in explaining away the Full Bench decision of this Court in the case of AIR 1959 All 540 (FB) (supra) on the observation that It related to a joint stock company, hence not applicable. The court below thus was in error in rejecting the application of the deity for that reason.

7. There remains then the question whether the finding of the court below that the deity was possessed of sufficient means to pay the court fee is a finding which cannot be set aside in the exercise of revisional jurisdiction. The learned Judge of the court below did not record a finding that the deity was in possession of any property yielding income. All what has been found is that there is some property endowed to the deity which is in possession and management of the defendant Mahant Prem Das. The learned Judge thought that the mere fact that the deity was not in possession of the property would not affect the merits and the deity would be disqualified from suing as pauper. The learned Judge did not record a finding as to the actual income which the property yielded. Be that as it may. from the record even it does not appear what were those properties which the defendant alleged were owned and possessed by the deity. I think such a finding which is not definite or based on any relevant evidence cannot disqualify the deity from suing as pauper. The learned Judge of the court below in refusing the permission sought by the deity for bringing the suit in forma-pauperis without recording a clear and definite finding acted illegally and with material irregularity in the exercise of his jurisdiction.

8. It Is unnecessary to observe that the question whether Balramdas, could properly act as the next friend of the deity and the deity was competent to sue through him would remain an open question to be raised and decided in the suit itself.

9. For the reasons given above. I allow this revision, set aside the order of the court below and grant permission to the deity to bring the suit in forma-pauperis. I make no order for costs.


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