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Mt. Ram Kailash Kunwari Vs. Ishwari Saran and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All475; 163Ind.Cas.754
AppellantMt. Ram Kailash Kunwari
Respondentishwari Saran and ors.
Excerpt:
- - we are not satisfied that the learned subordinate judge was justified in dismissing the application upon these grounds.1. this is an application asking for revision of an order passed by the learned subordinate judge of gorakhpur who dismissed an application for leave to sue as a pauper upon the ground that the application was not in proper form and that it was not presented by the applicant in person or by a properly authorised agent on her behalf. the alleged defects in the application were that the application was not in the form of a plaint in accordance with the provisions of order 33, rule 2, civil p.c., and that it was not properly verified as a plaint should be verified because there was no verification in respect of the paragraphs of the plaint according to their numbers. the application was presented on behalf of the applicant who is a pardanashin lady by her husband. this man had in his.....
Judgment:

1. This is an application asking for revision of an order passed by the learned Subordinate Judge of Gorakhpur who dismissed an application for leave to sue as a pauper upon the ground that the application was not in proper form and that it was not presented by the applicant in person or by a properly authorised agent on her behalf. The alleged defects in the application were that the application was not in the form of a plaint in accordance with the provisions of Order 33, Rule 2, Civil P.C., and that it was not properly verified as a plaint should be verified because there was no verification in respect of the paragraphs of the plaint according to their numbers. The application was presented on behalf of the applicant who is a pardanashin lady by her husband. This man had in his possession at the time a special power of attorney alleged to have been executed by the applicant.

2. The Court admitted the application in the first instance on the report of its officer that the application was in form. Notice was issued to the Government Pleader and to the defendants. An objection was then made by the defendants that the husband of the applicant had no authority to present the application. The Government Pleader admitted that the applicant was entitled to sue as a pauper. The matter dragged along in the Court of the learned Subordinate Judge for three years and then the application was ultimately dismissed upon the grounds which we have stated. We are not satisfied that the learned Subordinate Judge was justified in dismissing the application upon these grounds. It may be that there were certain formal defects, but we consider that the learned Subordinate Judge, especially at that stage after the period of limitation had expired, should have allowed these defects to be removed by amendment.

3. We express no opinion upon the question whether an application for permission to sue as a pauper is invalid merely because the portion of it which contains the particulars required in regard to plaints is on a separate piece of paper from the application that permission should be given to the applicant to sue in forma pauperis. That was the position in this case. Even if this is a defect it is one which the learned Subordinate Judge might have allowed to be removed by amendment. As to verification we find that the point was never brought to the notice of the applicant during the three years in which the matter was pending in the Court. The point was not raised in the written statement put in by the defendants. , It would have been very easy for the learned Subordinate Judge to have required the person who put in the application to supplement it by a proper verification.

4. The other point that the applicant's husband had no power to present the application seems to us not to have had any force. It is not denied that the applicant is pardanashin and therefore under the provisions of Section 132, Civil P.C., she is exempted from appearing in Court. A pauper application might then have been presented on her behalf by a properly authorized agent. Even if an authorized agent is the same as a recognized agent an 'authorized agent' is a person who has a power of attorney in his possession. The husband had in his possession what purported to be a power of attorney. The learned Subordinate Judge has relied upon the provisions of Section 85, Evidence Act which say that a power of attorney shall be presumed to have been properly executed if it had been verified by a Magistrate or certain other officers. It may be that there was no presumption in favour of this particular power of attorney, but it does not follow that there was an opposite presumption that it had not been duly executed by the applicant. That was a question of fact which could have been the subject of proof, if it was seriously contended that the applicant never meant to execute a power of attorney in respect of this suit in favour of her husband. The husband or the applicant might have been asked at some time to submit proof of the execution. It appears that the applicant herself was examined on commission on the subject of her pauperism and in these-circumstances there seems very little doubt that she was the person who authorized the institution of the suit. It seems, however, that at the moment there is no evidence of the execution of the power of attorney and therefore it will be necessary for the Court below to go into that question when we send the case back as we propose to do.

5. There is one other point which we have to consider. The order rejecting the application was passed a year before this present application in revision was presented to this Court. The delay has been explained. In the first place, the applicant applied for copies of the order. It was found that there were formal defects in the order and it was necessary to get it amended. This amendment was made in November 1933. There is an affidavit to the effect that money was then left with a legal practitioner who is related to the applicant in order that he or his clerk might get the copies of the amended order. The clerk absconded and consequently it was not till May 1934 that it was discovered that the new copies had not been received and had not been sent to an Advocate practising in this Court. A fresh application was-therefore made on the 4th of May and the copies were received on the 26th of May after the Court had closed for the long vacation. An application in revision was made immediately after the re-opening of the Court. In these circumstances we do not think that the delay is such as would preclude us from exercising our powers in revision.

6. We have already explained that we think that the learned Subordinate Judge was not justified in passing the order which he did pass. We therefore set his order aside and direct that the case shall be sent back to his Court with instructions to proceed. The learned Subordinate Judge will satisfy himself upon evidence that the special power of attorney was executed by the applicant in favour of her husband provided of course that the matter is still in dispute between the parties. He will then proceed to dispose of the application according to law, after giving the applicant an opportunity to amend her application in such a way as to remove any formal defects which there may be in it. The costs of this application will abide the result.


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