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Ramzan Ali Vs. Mt. Satul Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1948All244
AppellantRamzan Ali
RespondentMt. Satul Bibi and ors.
Excerpt:
- - the application was opposed by the government as well as by ramzan ali. the applicant was examined and cross-examined, and it appeared from her cross-examination that the petition presented to the court had not been properly verified and signed by the applicant as required by rules 2 and 3 of order 33. in her statement she admitted that her signature was taken on blank papers, that the bony of the application as well as the verification was filled in by her husband, abu mian at mirzapur and that she did not know until she was examined in the case, what was written in the application. under section 115 this court can call for 'the record of any case which has been decided' by any court subordinate to it when no appeal lies to this court from that decision, provided the subordinate.....malik, j.1. this is an application in revision under section 115, civil p.c. 1908 (act v of 1908) by one ramznn ali, defendant 1, against whom an application of mt. satul bibi for permission to be allowed to sue in forma pauperis was granted by the learned civil judge of mirzapur.2. one kallu was the owner of considerable property. he died on 15th november 1940. his heirs and legal representatives, according to mahomedan law, were his widow, mt. bhagni, defendant 2, his son, ramzan ali, defendant 1, and his daughter, mt. khatun defendant 3 by mt. bhagni, as also his daughters, mt batul, defendant 4, and mt. satul by a predeceased wife.3. on 26th november 1940, a deed of relinquishment was executed by mt. satul, mt. batul and mt. khatun in favour of ramzan ali. under this document, the.....
Judgment:

Malik, J.

1. This is an application in revision under Section 115, Civil P.C. 1908 (Act V of 1908) by one Ramznn Ali, defendant 1, against whom an application of Mt. Satul Bibi for permission to be allowed to sue in forma pauperis was granted by the learned Civil Judge of Mirzapur.

2. One Kallu was the owner of considerable property. He died on 15th November 1940. His heirs and legal representatives, according to Mahomedan law, were his widow, Mt. Bhagni, defendant 2, his son, Ramzan Ali, defendant 1, and his daughter, Mt. Khatun defendant 3 by Mt. Bhagni, as also his daughters, Mt Batul, defendant 4, and Mt. Satul by a predeceased wife.

3. On 26th November 1940, a deed of relinquishment was executed by Mt. Satul, Mt. Batul and Mt. Khatun in favour of Ramzan Ali. Under this document, the executants purported to give away all their rights in their father's property in favour of their brother, Ramzan Ali.

4. On 6th August 1941, an application was filed by Mt. Satul Bibi under order 33 of the Code for permission to sue as a pauper. Ramzan Ali, Mt. Bhagni, Mt. Khatun and Mt. Batul were all impleaded as opposite parties. The case was numbered and registered as Misc. Case NO 9 of 1941, and notice was issued. The application was opposed by the Government as well as by Ramzan Ali. The applicant was examined and cross-examined, and it appeared from her cross-examination that the petition presented to the Court had not been properly verified and signed by the applicant as required by Rules 2 and 3 of Order 33. In her statement she admitted that her signature was taken on blank papers, that the bony of the application as well as the verification was filled in by her husband, Abu Mian at Mirzapur and that she did not know until she was examined in the case, what was written in the application.

5. Prom the statement of Mt. Satul it was clear that the application for leave to sue as a pauper had not been duly verified or signed by the applicant. The Court, therefore, dismissed the application on the ground that it was not maintainable. The order was in these terms:

The application (plaint) was thus not validly executed and is defective with the consequence that it is not maintainable and is rejected but not on merits. The applicant will be liable for costs linourted by Government and the opposite party in this proceeding.

6. To my mind, the learned Civil Judge wanted to make it clear that he was rejecting the application as it was not in proper form and was not refusing to allow her to sue as a pauper on the merits.

7. On 25-11-1943, Mt. Satul filed a second application for permission to sue as a pauper. It is not denied that this application was duly signed and verified by her and it was properly presented before the learned Civil Judge. I may mention that in the previous application there was also a question of its proper presentation as it had been presented before a Munsif, who had no power beyond Rs. 5,000 as the Civil Judge was on leave, but the question whether the presentation was or was not proper was not decided.

8. This application was numbered and registered as Miscellaneous Case No. 12 of 1943- Notice was again issued to the opposite party. The application was contested, but it was granted on 15-7-1944.

9. An objection was taken in the Court below that the application was barred by Order 83, Rule 15 of the Code as a similar application had already been dismissed. The learned Civil Judge held that 'the previous application was not rejected on merits. It was rejected as it was not properly verified.

10. Ramzan Ali, defendant 1, has therefore filed this application in revision and the only point raised on his behalf is that as the second application was barred by Order 33, Rule 15 the lower Court erred in the exercise of its jurisdiction in granting the same.

11. A preliminary objection was, however, raised on behalf of Mt. Satul Bibi that her application for leave to sue in forma pauperis having been granted, a revision against that order, under Section 115, Civil P.C., was not competent. It was further urged on her behalf that the applicant had no right to insist on payment of court-fees, which were payable to the Government and this Court should not therefore, interfere in the exercise of its revisional jurisdiction, specially as no revision had ever been entertained by this Court at the instance of a private party where an application for leave to sue in forma pauperis was granted.

12. As there was a divergence of opinion on the first point, that is, whether a revision lies under Section 115, Civil P.C., against an order granting an application for leave to sue as a pauper, the case was referred to a Full Bench by the referring order dated 2-51946.

13. Before the Full Bench, the question as to the scope of Section 115 and what is a 'case decided' has been argued at considerable length by learned Counsel for the applicant. Under Section 115 this Court can call for 'the record of any case which has been decided' by any Court subordinate to it when no appeal lies to this Court from that decision, provided the subordinate Court has either acted illegally or with material irregularity in the exercise of its jurisdiction or has failed to exercise jurisdiction or has assumed a jurisdiction which it did not possess.

14. It would be clear from the above that before this Court can go into the question whether the order passed by the Court was erroneous by reason of a wrong exercise of jurisdiction, it must be satisfied that it was a 'case decided.'

15. The words 'case decided' have not been defined by the Legislature. Learned judges have from time to time attempted to define them. We have had cited to us a series of Full Bench decisions on the point, but no definition has yet been found which would cover all cases and would apply to the facts and circumstances of every case. It has always been recognised that the word 'case' is wider than the word 'suit' and would include not only suits but proceedings which are not suits bat similar thereto, such as proceedings under the Guardians and Wards Act, Religious Endowments Act and the like.

16. In the case of a suit it was held in some cases that it was not decided till a decree was passed, and therefore any order of whatever description passed in the course of the trial of a suit could not be a 'case decided'; it was merely an interlocutory' order. The Courts have, in a large number of cases held that if an order is an 'interlocutory order' it cannot be a 'case decided'. By using the expression 'interlocutory order' in contradistinction to a 'case decided', the Courts seem to have created difficulties for themselves. The expression 'interlocutory order' is also not defined in any statute. Ordinarily, it would mean any order that is passed during the pendency of a suit. When I come to discuss the rulings, it would appear that the distinction is a very old one, and that wherever the Courts wanted to hold that it was not a case decided they, more often than not, said that it was not a 'case decided', because it was an 'interlocutory order'.

17. This was, however, not found very satisfactory and attempts were made to draw the further distinction that interlocutory orders relating to matters which could be held to be distinct and separable from the main suit were 'cases decided.' This led to the consideration in each case of the question whether the particular proceedings were so distinct and separable from the main suit that they could be held to be a separate 'case.'

18. It is difficult to frame a general formula or to classify the proceedings into two separate groups and to say that certain proceedings are so distinct and separable that orders disposing of them are 'cases decided' and the others are so incidental or ancillary to the conduct of the suit that they are not 'cases decided.' Generally miscellaneous orders, such as orders granting an adjournment, fixing & date, giving time to a party, summoning witnessess, admitting or rejecting a document, etc., may not be orders deciding a case as no question has been determined affecting the rights of the parties. Dalip Singh J. in Gurdevi v. Md. Bakhsh 30 A.I.R. 1943 Lah. 65 , suggested that certain other orders, e.g., orders deciding whether a person shall or shall not be party in the proceedings, orders deciding who are the legal representatives of a deceased party, orders determining who shall be the guardian of a minor or a lunatic must result in a 'case decided.' To the orders mentioned by him I may add orders setting aside an exparte decree, an order referring a case to arbitration, an order refusing to appoint a receiver and many such orders which though passed in the suit are not wholly ancillary to it and the point at issue is finally decided by those orders.

19. It will be necessary for the Courts to consider in every case that comes up before them whether a particular order can be questioned under Section 105, Civil P.C., in the appeal from the decree or whether such orders finally determine certain matters which may materially affect the rights of the parties. In course of time, from the decisions, it may be possible to prepare some sort of an exhaustive list of orders which are not revisable under Section 115, Civil P.C.

20. But even such orders may, in the particular circumstance of a case, where the rights of the parties are materially affected, be considered to result in a 'case decided.' It is, therefore, to my mind, futile to try to give a definition of the words 'case decided' which would apply to all facts and circumstances, or try to limit the same to the question whether the matter is distinct and separable from the main suit or has intimate connections therewith.

21. The questions that the Courts should consider when deciding a revision under Section 115, Civil P.C., are whether the order complained against decides a point in controversy which substantially affects the rights of the parties, whether that order has been passed without jurisdiction or in the irregular exercise thereof, and whether if the High Court does not exercise its revisional juris, diction, substantial injustice would be done to a party.

22. Even accepting the view of this Court that only orders relating to matters which can be held to be distinct and separable from the main suit are revisable, I am of the opinion that an order granting an application for leave to sue in forma pauperis is so distinct and separable that it can fee revised under Section 115, Civil P.C. In coming to that conclusion I am in full agreement with the observations of Dunkley J. in Ma Gale Ma v. Ma Mi ('31) 18 A.I.R. 1931 Rang. 318 who held as follows:

The matter before the original Court is the application for leave to sue in forma pauperis and not the suit which follows upon that application. The 'case' consists of the application, the enquiry thereon and the order granting or rejecting the application. To my mind, this 'case' is decided upon the passing of the order therein, whether the application is granted or rejected; on the other hand the suit is not decided, whatever may be the result of the application, as even if the application is rejected the applicant can go on with the suit by paying the necessary court-fees. The sole question before the Court on the application to sue in forma pauperis is whether the applicant should be required to pay court-fees, and that question is decided one way or the other by the order on the application and hence, whatever may be the nature of the order, it decides the 'case' before the Court.

Up to the year 1893, so far as I can find from the cases cited at the Bar, this Court had never interfered in revision either when an application for leave to sue in forma pauperis wag granted or rejected. Thus, in Harsaran Singh v. Mahomad Raza ('81) 4 All. 91 where an application for leave to sue as a pauper was rejected on the ground that it had not been properly presented, an application in revision was dismissed by Straight and Duthait JJ. who held that Section 822 (now 116) Civil P.C., did not, in their judgment, apply to 'a proceeding so purely of an interlocutory 'Character.' Similarly, in Bhulneshri Dat v. Bidiadis ('82) 1882 A.W.N. 69 Straight and Old field JJ. held that, following the rulings of this Court, they could not interfere in revision with the Subordinate Judge's order refusing the application of the petitioners to sue in forma pauperis.

23. A departure was, however, made in the year 1893 when Burkitt J. in Faiz Mahomed Khan v. Azizunnissa ('93) 1893 A.W.N. 218 entertained a revision against an order refusing an application for leave to sue in forma pauperis. In that case the lower Court although of the opinion that the applicant was a pauper had refused to give him leave to sue as such on the ground that the suit was unlikely to be successful.

24. I may here mention that even prior to 1893 in the year 1885 a case was referred to a Full Bench for the decision of the question whether an order dismissing an application for leave to sue as a pauper was revisable by this Court : see Chhatarpal Singh v. Raja Ram ('85) 7 All. 661 (F.B.). The Chief Justice and three other learned Judges (Petheram C.J. and Straight, Oldfield and Btodhurst JJ.) decided that there was no ground for interference in revision as there was no illegal or irregular exercise of jurisdiction by the lower Court. If jurisdiction had been illegally or irregularly exercised probably their Lordships would have interfered. Mahmood J. considered the question whether there was a 'case decided' and held that the word 'case' as used in Section 622, of the Code,

should be understood in its broadest and most ordinary sense, unless there were specific reasons for narrowing its meaning.

After having dealt in detail with the various sections of the old Code which are now contained in order 38 he observed:

Now, reading these provisions of the law together, there is no doubt in my mind that the strongest possible analogy exists between an application to sue in forma pauperis and an ordinary plaint in a suit under chapter V of the Code a view fully supported by the principle upon which Sections 403 and 410 have been framed. This being so, it seems to me to follow as a corollary that rejection of an application to sue in forma pauperis under Section 405 or Section 407 falls under the same general category of adjudications as the rejection of an ordinary plaint under Section 53 or Section 54. In both cases the service of notice on the opposite side, or his appearance, is not a condition precedent to the exercise of the power of rejection, and it follows that if the rejection of a plaint is a 'case' the rejection of an application to sue in forma pauperis must also constitute a 'case'.

It having been held in Faiz Mahomed Khan v. Azizunnissa ('93) 1893 A.W.N. 218 and in certain other cases that an order rejecting an application may be revised by this Court in its revisional jurisdiction, Karamat Husain and Chamier JJ. in Mahomed Ayab v. Mahomed Mahmud ('10) 32 All. 623 drew a distinction between an order granting an application and an order rejecting an application and held that though an order rejecting an application may be a 'case decided,' the order granting an application was not a 'case decided'. The only reason that they have given for this difference is that an order granting an application to sue in forma pauperis is merely an interlocutory order. So far as I can see, it is from here that the distinction which some learned Judges have characterised as subtle and others as illogical has arisen between an order granting an application and an order rejecting an application.

25. Though in Mahomed Ayab v. Mahomed Mahmud ('10) 32 All. 623 the reason for the distinction was not clearly mentioned, in some of the later decisions the reason for this distinction has been given as follows: that when an application for leave to sue in forma pauperis ia rejected, those proceedings have terminated and are at an end. The applicant may, if he desires, pay the court-fees and proceed with his suit, but that is an independent proceeding, while if the application is granted then on the order granting the application it is numbered and registered as a suit, and Rule 8 of Order 33, Civil P.C., says that it shall be deemed the plaint in the suit, so it cannot be said that the proceedings have terminated.

26. A subtle argument has been addressed to us on the question whether the order granting an application comes first or the suit which, on such order being passed, dates back to the date of the application and is deemed to have been pending since then. To my mind, this distinction is without substance. It is obvious to a mind not trained in higher mathematics that when an order is passed granting an application to sue in forma pauperis, certain results follow, and one of the results is that the application for leave is to be numbered and registered as a plaint and the plaint is deemed for purposes of limitation, for the application of rule of lis pendens etc. as pending from the date when the application was filed. The Courts had tied themselves up in difficulties by holding that if an order was an in-terlocutory order, then it could, in no case, be a 'case decided' and then they tried to draw subtle distinctions between certain proceedings and others which were independent and separable. The question was then solemnly debated whether an application granting leave to sue as a pauper terminated those proceedings and gave rise to a suit or the suit was to be deemed to be pending from before and the order granting it should be deemed to have come in between so that it was merely an interlocutory order.

27. The distinction having been once drawn in Mahomed Ayab v. Mahomed Mahmud ('10) 32 All. 623 it was followed in several cases. It may be useful to give the decisions of this Court in order of date so far as they have been cited before us.

28. In Kandhaia Singh v. Mt. Kundan 9 A.I.R. 1922 All. 208 it was held by Piggott and Walsh JJ. that no revision lay against an order admitting an application.for leave to sue in forma pauperis.

29. In Shankar Ban v. Ram Deo : AIR1926All446 Walsh and Dalai JJ. held that no revision was competent against an order refusing leave to sue as a pauper. Dealing with the distinction between an order rejecting and an order granting an application they observed:

We are unable to accept this subtle distinction, and it seems to us that on principle the whole controversy is set at rest by the decision of the Full Bench.

30. The Full Bench referred to in this case was the decision in Buddhulal v. Mewa Ram 8 A.I.R. 1921 All. 1 where the question arose whether a decision, on a preliminary issue of jurisdiction, in favour of the plaintiff, was revisable under Section 115 of the Code. Dealing with the question as to what is a 'case decided' Piggott J. expressed the opinion that there were certain proceedings in the nature of a suit, for example, under the Guardians and Wards Act, Provincial Insolvency Act and the Indian Succession Act etc., and those no doubt amounted to a ''case decided', The word 'case' according ( to him was a more comprehensive expression than a 'suit', but where it related to an order passed in a suit the 'case' muet mean 'suit' itself. In that view any order passed by a Court r relating to any matter from the date of the institution of the plaint right upto the date of the passing of the decree could not be a 'case decided' and could not be, therefore, cevisable. That view was accepted by Gokul Prasad J. Eyves J. however made it clear that he confined himself to the point whether the decision of a single issue by a subordinate Court in a suit which was still pending in that Court was a 'case decided'. Rafiq and Walsh JJ. gave dissentient judgment holding that is was a 'case decided.'

31. The extreme view expressed in Buddhulal v. Mewa Ram 8 A.I.R. 1921 All. 1 by Piggott and Gokul Prasad JJ. has not been accepted in subsequent decisions of this Court. In Ram Sarup v. Gaya Prasad : AIR1925All610 when the question arose whether an order setting aside an ex parte decree was as 'case decided', Lindsay J. observed that no definition of the word 'case' was to he found in the Code of Civil Procedure and probably no exhaustive definition of the word could' be given, but he had no doubt that proceedings-for restoration of a case dismissed in default or for setting aside an ex parte decree were independent proceedings, and an order passed in those proceedings deciding that matter was a. 'case decided.' Daniels J. agreed with him. Sulaiman J. stressed the fact that in the particular case before them, the order had been passed by the District Judge on appeal and he had no other proceeding pending before him.

32. The point had, therefore, to be again considered by a Full Bench in the year 1931, in Radha Mohan Datt v. Abbas Ali 18 A.I.R. 1925 All. 294 where it was held that a proceeding; to set aside an ex parte decree was distinct from; the suit itself. Such a proceeding commenced by an, application to set aside the ex parte decree and terminated by an order discharging the said decree and was, therefore a 'case decided.' Applying: the same reasoning it is difficult to see why an application for leave to sue in forma pauperis, which is terminated by the order granting or refusing the same, is not a 'case decided.'

33. Since the decision in Buddhulal v. Mewa Ram 8 A.I.R. 1921 All. 1 various orders have come up before this Court in revision, and there are a large number of reported cases where it has been held that a proceeding which is separable and distinct from the proceedings in a suit may be a 'case decided.' In Narain Gir v. Ram Lakhan Gir : AIR1934All368 the question arose whether an order appointing a third arbitrator, when the parties failed to agree to the appointment, was a 'case decided' and it was held that it was a. 'case decided.'

34. Sir Shah Muhammad Sulaiman was a party to the decision in the Full Bench case in Mt. Suraj Pali v. Arya Pratinidhi Sabha 23 A.I.R. 1939 All. 686 and when discussing the question whether an order refusing to allow and amendment of the plaint was a 'case decided' his Lordship, with whom the other two learned Judges agreed observed:

Thus the word 'case' could not be given such a wide meaning as to cover every interlocutory order passed by a Court during the trial of a suit. Now if a case within the meaning of Section 115, Civil P.C. is started as soon as an application for the amendment of a pleading is made then the case would be decided when final orders on that application are passed, no matter whether the application is allowed or disallowed. There would be an anomaly in holding that if the application is allowed the case is not decided, but if it is not allowed the case is decided. If the filing of the application was the commencement of a new proceeding or a case, then the case must necessarily be decided if the application is allowed. But it has been held consistently by this Court that when an application for amendment has been allowed no case can be said to have been decided so as to be made the subject of a revision to this Court. The oases laying down that no revision lies from orders merely allowing or disallowing amendments which are to some extent matters of discretion seem to have laid down the correct law. It must accordingly be held that no revision lies from an order merely refusing to allow an amendment of a pleading. Cases where the amendment comes under some other Order of the Code, for example, the addition or substitution of parties, or the striking off a pleading, may amount to a case decided, but an order passed purely under Order 6, Rule 17 does not.

34a. The same anomaly is there, if we hold that a revision lies against an order refusing an application for leave to sue as a pauper but it does not lie against an order granting it.

35. In Mr. Sumitra Devi v. Hazari Lal : AIR1930All758 where a revision had been filed against an order dismissing an application for leave to sue in forma pauperis Sir Shah Mohammad Sulaiman discussing the case in Buddhulal v. Mewa Ram 8 A.I.R. 1921 All. 1 observed:

As the opinion of Ryves J. alone turned the scale the Full Bench is only authority for the proposition that no revision lies from a mere finding, even though that finding may relate to the question of jurisdiction. That case is no authority for the broader proposition that no revision will ever lie from an order which is merely an interlocutory one.

Sir Shah Sulaiman was definitely of the opinion that in a case where the application had been rejected and the Court had acted with material irregularity in the exercise of its jurisdiction, this Court could interfere in revision. The other learned Judge, Niamatullah J., in the first part of his judgment expressly left the question open whether if an application for leave to sue as a pauper was granted,

a definite proceeding should be considered to terminate with the order granting such application so as to amount to a 'case' having been decided.

36. In Secy of State v. Mt. Sonkali : AIR1934All424 Sulaiman C.J. and Mukerji J. entertained a revision against an order granting an application for leave to sue in forma pauperis. The revision had been filed on behalf of the Secretary of State on the ground that the application had been granted without notice to the Government Pleader. The opposite party was not represented and the point was not taken whether it was a 'case decided.' So far as I can see this is the only case where this Court has entertained a revision against an order granting an application for leave to sue in forma pauperia, but the facts were exceptional and there can be no doubt that the lower Court had committed a. material irregularity in the exercise of its jurisdiction in overlooking the provisions of Order 33 and in granting the application without notice to the Government Pleader.

37. In 1912 two cases were decided by Ismail and Mulla JJ. One was against an order refusing to grant leave and the other against an order granting leave to sue in forma pauperis. The Bench held that a revision did lie against an order refusing leave while no revision lay against an order granting leave, as it was merely an interlocutory order and not a 'case decided'; so the view which had been propounded in the year 1910 in Mahomed Ayab v. Mahomed Mahmud ('10) 32 All. 623 and had been from time to time doubted or refused to be followed was definitely accepted in the year 1942.

38. In Mt. Chanda Begum v. Maqsood Husain 29 A.I.R. 1942 All. 319, where the application had been rejected, the revision was entertained and was allowed. The learned Judges laid stress on the fact, though it was not strictly necessary, that there was a difference between a case where leave had been granted and a case where leave had been refused, and in the former case it was nothing but an interlocutory order. The other case is Upendra v. Ram Kumar Das 29 A.I.R. 1942 All. 347, where a revision had been filed against an order granting an application for leave to sue in forma pauperis. While accepting the view set out in Mahomed Ayab v. Mahomed Mahmud ('10) 32 All. 623 that an order rejecting an application was a. 'case decided' and an order granting an application was an interlocutory order, the learned Judges gave fresh reasons for this anomaly. They held:

In our judgment, the basic idea which underlies the decisions of this Court is an. anxiety to preclude all possibility of a rightful claimant being denied the assistance of the Court for enforcing his claim simply because he happens to be too poor to pay the necessary court-fee. This Court seems to have deliberately placed a limitation upon the exercise of its revisional power in, dealing with cases in which an application for letve to sue in forma pauperis is granted. In our judgment it is a wholesome and salutory limitation and we are not inclined lo be anxious to have it set aside.

If I may say so, with great respect, it is not necessary to attain this object by giving a forced interpretation to the words 'case decided'. A revision can be entertained only on those special grounds of wrong assumption of jurisdiction, failure to exercise jurisdiction or irregular exercise thereof : see Amir Hasan Khan v. Sher Baksh Singh ('85) 11 Cal. 6, Balakrshna Udayar v. Vasudeva Ayyar 4 A.I.R. 1917 P.C. 71' and even then it is a discretionary relief which a Court is not bound to grant : see Mahomed Naimullah Khan v. Ihsanullah Khan ('72) 14 All. 226 (F.B.).

39. Having, therefore, considered the authorities of this Court, I am of the opinion that am order granting an application for leave to sue in; forma pauperis is a 'case decided.'

40. That view has been accepted in various decisions of the other Courts : see Baba Sah v. Purshothama Sah 12 A.I.R. 1925 Mad. 167; Venkata Krishnayya v. Sayamma : AIR1926Mad958 , Firm Bhajan Ram v. Mt. Narain Devi ('26) 13 A.I.R. 1926 Lah. 642, Hari Krishna v. K.R Khosla ('34) 21 A.I.R. 1934 Lah. 642, Hari chand v. Mt. Durga Devi ('41) 28 A.I.R. 1941 Lah. 128, Bihari Sahu v. Mt. Sudama Kuer ('38) 25 A.I.R. 1938 Pat. 128, Ma Gale Ma v. Ma Mi ('31) 18 A.I.R. 1931 Rang. 318 and Durga Prasad v. Gur Dularey ('38) 25 A.I.R. 1938 Oudh 146. The distinction drawn in Mahomed Ayab v. Mahomed Mahmud ('10) 32 All. 623, already referred to, has been followed in Chandumal v. Tejulbai ('33) 20 A.I.R. 1933 1933 Sind 82 and by the Nagpur Judicial Commissioners' Court in Sitai v. Tanai ('11) 10 I.C. 471. For the reasons given above, I am of the opinion that the view that has been accepted by the Lahore, Madras, Patna, Rangoon and Oudh Courts is the sounder of the two views. I am, therefore, of the opinion that an order granting an application for leave to sue in forma pauperis is a 'case decided.'

41. Learned Counsel for the applicant has urged that the previous application dated 6th August 1941, having been rejected on 11-7-1942, after issue of notice to the defendants and to the Government Pleader, it must be held that it was an order refusing to grant leave under Order 33, Rule 7 of the Code and a second application for the same relief was barred by the provisions of Order 83, Rule 15.

42. The argument of learned Counsel is that when an application is presented the Court has first to see whether it is in order or it can be rejected in limine. The Court may on ex parte examination of the application and of the applicant reject the application under Order 33, Rule 5, but if the Court does not see any cause for rejection and issues notice under Order 33, Rule 6, it can then pass an order only under Order 33, Rule 7, and what-ever may be the language used by the Court it must be taken that it was an order under Order 33, Rule 7, Sub-rule (3) allowing or refusing the application and a second application would be barred by Order 33, Rule 15.

43. It is difficult to accept this contention of the learned Counsel though I find that there are certain authorities in his favour. Order 33, Rule 1 defines who is a pauper and lays down that a suit may be instituted by a pauper subject to the provisions of that Order. Rule 2 lays down what the application should contain and also provides that the application must be signed and verified in the manner prescribed for the signing and verification of pleadings. Rule 3 provides for the presentation of the application and says that it must be presented in person or by an authorised agent. Rule 4 gives the Court power to examine the applicant. Rule 5 then provides as follows:

The Court shall reject an application for permission to sue as a pauper-(a) where it is not framed and presented in the manner prescribed by Rule 2 or 3, or '(b) where the applicant is not a pauper, or (c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or (d) where his allegations do not show a cause of action, or (e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter.' At the end of Sub-rule (a) this Court added the following words by an amendment dated 14-1-1933:and the applicant, on being required by the Court to make any amendment within a time to be fixed by the Court, fails to do so.

Then comes Rule 6 which provides:

Where the Court sees no reason to reject the application on any of the grounds in Rule 5, it shall fix a day for receiving such evidence as the applicant may adduce in proof of his pauperism, and for heating any evidence which may be adduced in disproof thereof.

It will thus appear that under Rule 6 the evidence is to be confined to the question of pauperism. Then comes Rule 7 under which after the evidence as mentioned in Rule 6, has been recorded, the Court has to hear arguments on the question 'whether on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in Rule 5 and then under Sub-rule (3) 'the Court shall then either allow or refuse to allow the applicant to sue as a pauper.

44. I have already pointed out that under Rule 6 the evidence is to be confined to the question of pauperism and under Rule 7 the arguments have to be heard on the question whether 'the applicant is or is not subject to any' of the prohibitions specified in Rule 5.' The language of this sub-rule is peculiar. It does not speak of any defect in the application. It refers only to certain prohibitions specified in Rule 5 to which 'the applicant' is subject. Ordinarily, it cannot be said that a defective application covered by Sub-rules (a) and (d) of Rule 5 is a 'prohibition' from which 'the applicant' suffers.

45. In this case we are not concerned with Sub-rule (d). The application was dismissed on the ground that the lady had signed and verified a blank sheet of paper and it was not, therefore, her application which could be said to have been either duly signed or duly verified by her. The question, therefore, is whether the defect in the application can be said to be a prohibition to which the applicant was subject. To my mind, Rule 6 and 7 were intended to be confined, as Rule 6 clearly is, to the question whether the applicant is or is not entitled to sue as a pauper which would be a question really covered by Sub-rule (b), (c) and (e) of Rule 5. I can see nothing in Order 33, Rule 5 which bars the jurisdiction of the Court to stop the proceedings at any stage, if it comes to know that the petition has not been duly verified or that the allegations do not show a cause of action, and reject the petition on such ground. Rule 15 lays down that an order refusing to allow the applicant to sue as A pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue. This obviously means that if it has once been held that the applicant is not a pauper, then he cannot have the matter reagitated with respect to the same cause of action.

46. The result of holding the contrary view would be that though in this case the first application could not be defimed to be an application by Mt. Satul Bibi as she had merely signed a blank sheet of paper and though the learned Judge took care, when dismissing that application, to say that he was rejecting it and not deciding the matter on the merits, Mt, Satul Bibi would be debarred from coming to Court with a proper application. I can see no reason for treating an application differently from a plaint which if rejected under Order 7, Rule 11, does not debar the plaintiff from filing a fresh plaint under Rule 13.

47. Under the old Code of Civil Procedure (xiv of 1882), an application for leave to sue in forma pauperis could be rejected under Section 405 if the application was not framed or presented in the manner prescribed by Section 403 or 404. Section 407 proviled for rejection only on four grounds which are now similar to the grounds (b) to (e) of Rule 5 of Order 83, and then Section 409 provided that the Court shall hear arguments on the question whether 'the applicant is or is not subject to any of the prohibitions specified in Section 407.' Prom this, it will be clear that under Section 409, which is now Order 33, Rule 7, the question of verification and presentation could not be considered, as that was dealt with in Section 405 and not in Section 407. Section 413 provided that

an order of refusal made under Section 409 to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue.

There was, therefore, no bar under the old Code to a second application being filed if the first application was rejected under Section 405. The change in the language of Order 33, Rules 15, 7 and 5 was not, to my mind, intended to affect the law. As I read Rules 6 and 7, those rules, in my opinion must be confined to the question of pauperism and there is no bar to a Court rejecting an application under Rule 5 if it finds that the application is not properly signed or presented even after it has issued notice.

48. The contrary view would lead to this absurdity that if after issue of notice the Court discovers that the application must fail as it has not been duly verified, it must proceed to record evidence under Rule 6 and hear arguments under Rule 7 and would have no right to stop the proceedings at the stage where it found that the application was not duly verified and must, therefore, fail.

49. In support of his view learned Counsel has cited several cases two of which alone have any bearing on the point. In Maung Shwe Tha v. Ma U Kra Zan 19 A.I.R. 1932 Rang 195 Page C.J., held that the time for re-drafting Order 33 was long overdue and though he was of the opinion that the Legislature could not have intended that an application for leave to sue in forma pauperis should operate as a bar to a fresh application, if the first application was rejected or disallowed merely because it was not in conformity with Rule 5 (a) of Order 33, yet he came to the conclusion that the language of Rule 15 was such that, if an application was rejected after issue of notice on the ground that it had not been properly verified, the second application would not lie. He did not accept the distinction that was sought to be drawn that Rule 7, Sub-rule (2) did not apply to Rule 5(a).

50. If it is clear that the Legislature did' not intend that a second application for leave to sue in forma pauperis should be barred if the first was rejected on the ground that it was not properly verified, I can see nothing in Rule 15 or Rule 7 which should force the Courts to come to that conclusion. I have already given above my reasons why I consider that Rules 6 and 7 were intended to apply only to a question of pauperism and not to the other technical defects mentioned in Rule 5.

51. The second cage is Atul Chandra Sen v. Peare Mohan Mookerjee 4 A.I.R. 1917 Cal. 696 where Holmwood and Mullick JJ. took the view that 'there is no distinction between rejection under Rule 5 and an order of refusal under Rule 7.' That extreme view has, so far aa I know, been not accepted by any other Court.

52. The other cases relied on by learned Counsel are not on Rule 15 at all. In most of those cases the question was whether the Court was right in dismissing an application, as on the evidence it was not satisfied that the plaintiff had a cause of action: see U Ba Dwe v. Maung Lu Pan 19 A.I.R. 1932 Rang. 107; Manikka N. Perumal Iyer v. Srinivasa Ayyengar ('41) 28 A.I.R. 1941 Mad. 398; Vaishnodas v. Rehmat Khan ('38) 25 A.I.R. 1938 Pesh. 50.

53. In Philomena Mendoza v. Dara Nusserwanjee Mistry 30 A.I.R. 1943 Bom. 338, an application had been presented in forma pauperis for leave to sue for maintenance by an illegitimate child of a Parsi. The application was rejected by Kania J. on the ground that an illegitimate son had no cause of action to maintain a suit for maintenance. There was an appeal under the Letters Patent and the Letters Patent Bench, held that the cause of action might be doubtful but the Bench was not prepared to say that such a suit could not lie, specially as there was no decision of the Bombay High Court or of the Privy Council which debarred a claim for maintenance by an illegitimate child of a Parsi. Notice was then issued and an objection was taken by the opposite party that an illegitimate child had no cause of action to maintain a suit for maintenance. The question was whether the decision under Order 33, Rule 5, at an earlier stage debarred the Court from going into the matter again under Order 33, Rule 7 atter notice had been served on the other side. In that connection, it was argued that under Order 83, Rule 7 the Court could only go into the question of pauperism and not into the question whether such a suit could lie. Chagla J. was of the opinion that under Order 33, Rule 7 the Court could consider any of the five grounds mentioned in Rule 5. This decision is only relevant to that extent and no more. No question of a second application being barred under Rule 15 arose in that case.

54. In this Court such a situation cannot arise as an explanation has been added to Sub-rule (d) of Rule 5 of Order 83 that

an application shall not be rejected under Clause (d) merely on the ground that the proposed suit appears to be barred by any law.

It is not necessary for me in this case to consider whether Order 33, Rule 7, Sub-rule (2) is wide enough to cover all the grounds mentioned in Rule 5 for rejection of an application. To my mind, Order 7, Rule 2 only applies to prohibitions to which the applicant is subject, though there is nothing to prevent the opposite party from pointing out at any stage that an application has not been properly verified or that the allegations in the application do not make out a cause of action, and there is nothing to bar a Court, when it is satisfied that the application must fail by reason of defects provided for in Sub-rule (a) and (d) of Rule 5, from stopping the proceedings at that stage and rejecting the application. I am, therefore, of the opinion that the application dated 25-11-1943, was maintainable.

55. The last question for consideration is whether even if we were in favour of the applicant on the second point which I am not, we should grant his application in the exercise of our revisional juriadiction. I have already pointed out that save for the case in Narain Gir v. Ram Lakhan Gir : AIR1934All368 there is no case of this Court where a revision was entertained against an order granting an application for review. I am, therefore, reluctant to grant such an application and depart from a practice which is now so well founded. I have already said that our revisional jurisdiction is entirely discretionary and it is only in the interest of justice that this Court should interfere.

56. According to the amendment dated 14-1-1933 in Rule 5 (a) of Order 33, the learned Civil Judge should have directed the applicant to make the necessary amendments that is, to re-sign and re-verify the petition, and if the applicant had failed to make the amendments within the time to be fixed by the Court; it was only then that the application should have been rejected. The Court did not comply with this amended rule may be because it had not a corrected copy of the Civil Procedure Code before it. If the Court had asked the applicant to sign and verify the petition and she had done it, then the application would have been heard on the merits and no question of her filing a second application would have arisen.

57. Learned Counsel for-the applicant has not. been able to satisfy me that his client would suffer any irreparable damage or injury if the suit is allowed to continue in forma pauperis, though at one stage it was suggested by Mr. Shankar Sahai Verma, who appeared in the connected revision that the suit would be time barred, learned Counsel for the applicant did not urge that point at all. The father of the plaintiff died in November 1940, the deed of relinquishment was obtained from her on 2611-1940, and from 6-81941, she has been prosecuting in good faith these applications for leave to sue in forma pauperis. Levying of court-fees may be a check upon frivolous and vexatious litigation, but its primary object is to secure funds for the proper administration of justice. I cannot, on the facts of this case, hold that the suit, on the face of it, appears to be either frivolous or vexatious. If the plaintiff fails to prosecute the suit, if she is called upon to pay the court-fees, it would be because her indigence disables her from paying the same. In view of the fact that she was never given an opportunity under Rule 5, Sub-rule (a) of Order 33, as amended by this Court to remove the defects in her first application and in view of the fact that this Court has not entertained revisions against orders granting an application for review, I am not prepared to make a departure in this case.

58. For the reasons given above, I would reject this application with costs.

Waliullah, J.

59. I agree.

Mootham, J.

60. I agree.

61. The revision is dismissed with costs.


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