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Kundan Lal Vs. Surendra Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 454 of 1978
Judge
Reported inAIR1980All205
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rules 2, 3 and 5; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97
AppellantKundan Lal
RespondentSurendra Nath and ors.
DispositionRevision dismissed
Excerpt:
civil - verification of application -order 33, rule 2, 3 and 5(a) of code of civil procedure, 1908 and section 97 of code of civil procedure (amendment) act, 1976 - court is obliged to afford opportunity to rectify defects - no inconsistency between the principal act and amendment - application to file appeal as an indigent person not properly verified - held, court had jurisdiction to permit verification. - - where it lays down the manner of presentation as well as clause (a) of rule 5 of order 33, c......has come to this court in revision. learned counsel submits that the amendment introduced by the allahabad high court to rule 5 of order 33, c. p. c., is no longer applicable and may be deemed to have been repealed by section 97 of central amending act of 1976.2. order 33, rule 2, c. p. c. provides that an application for permission to sue as an indigent person, shall be signed and verified in the manner prescribed for the signing and verification, of pleadings. rule 5 of order 33, c. p. c. says that the court shall reject an application for permission to sue as an indigent person where it is not framed and presented in the manner prescribed by rules 2 and 3. since the application had not been verified it was liable to be rejected under clause (a) to rule 5.3. the allahabad high court.....
Judgment:
ORDER

Satish Chandra, J.

1. A suit for partition was decreed. The defendants desired to file an appeal. They filed an application for permission to file the appeal as an indigent person under Order 44, C. P. C. It appears that the application for permission was not properly verified. The plaintiff-applicant raised an objection that the Court had no jurisdiction to permit the defendants to rectify the defect. The Court overruled this objection and allowed the defendants to verify the application. He then fixed a date for enquiry into pauperism of the defendants. Aggrieved by this order the plaintiff has come to this Court in revision. Learned counsel submits that the amendment introduced by the Allahabad High Court to Rule 5 of Order 33, C. P. C., is no longer applicable and may be deemed to have been repealed by Section 97 of Central Amending Act of 1976.

2. Order 33, Rule 2, C. P. C. provides that an application for permission to sue as an indigent person, shall be signed and verified in the manner prescribed for the signing and verification, of pleadings. Rule 5 of Order 33, C. P. C. says that the Court shall reject an application for permission to sue as an indigent person where it is not framed and presented in the manner prescribed by Rules 2 and 3. Since the application had not been verified it was liable to be rejected under Clause (a) to Rule 5.

3. The Allahabad High Court on 15-4-1933 added the following explanation at the end of Rule 5 :--

'(2) Add in Clause (a) between the figure '3' and the word 'or' the following: '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.'

Thus the Court is obliged to afford the applicant an opportunity to rectify thedefects before the application could be rejected under Clause (a) of Rule 5, namely, where it is not framed and presented in the manner prescribed by Rules 2 and 3.

4. Rule 3 of Order 33, C. P. C. where it lays down the manner of presentation as well as Clause (a) of Rule 5 of Order 33, C. P. C. were not amended by the Amending Act 104 of 1976 at all. There cannot be any question of any inconsistency between the amendments made by the Allahabad High Court and the amendments sought to be introduced by the aforesaid Amending Act. It is obvious that there was no inconsistency between the provisions of the Civil P. C., as they stood prior to their amendment by the Amending Act of 1976, and the amendments introduced by the Allahabad High Court in Order 33. The amendments introduced by the 1976 Amending Act are not relevant to the amendments introduced by the Allahabad High Court to Rule 5, Order 33, C. P. C.

5. Section 97 of the Amending Act No. 104 of 1976 provides:--

'Repeal and savings: (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed.'

There being no inconsistency between the Principal Act and the amendment introduced by the Allahabad High Court prior to the Amending Act and since no provision has been inserted by the Amending Act to bring about any inconsistency thereafter, it is evident that Section 97 was not applicable to aforesaid amendment introduced by the Allahabad High Court to Rule 5 of Order 33, C. P. C. Hence the Court had jurisdiction to permit the defendant to verify the application. The order passed by the learned District Judge was within his powers and valid.

6. The revision fails and is accordingly dismissed with costs.


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