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S.E. Orde Vs. Mrs. T.C. Deacon and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberCivil Revn. No. 106 of 1948
Judge
Reported inAIR1952All582
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 33, Rule 5
AppellantS.E. Orde
RespondentMrs. T.C. Deacon and anr.
Appellant AdvocateD. Sanyal, Adv.
Respondent AdvocateB. Mukerjee, Adv.
DispositionRevision allowed
Excerpt:
.....been called 'the plaint' & are satisfied that the document fulfils the requirements of order 33, rule 2, civil p. the court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application & 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,'the court has, therefore, to consider whether the applicant is a pauper & being satisfied on that point it has to consider again whether the applicant is or is not subject to any of the prohibitions specified in rule 5. it appears clear to us therefore that the court has only to consider first whether the applicant is a pauper & secondly whether any of the grounds mentioned in rule 5 for the..........application for leave to sue in forma pauperis. an application was filed as required by order 33 rule 2, civil p. c. the application contained the particulars required in regard to plaints. a schedule of the property belonging to the applicant was also given & the estimated value thereof & the document was signed & verified by the applicant. it was mentioned in the application that the applicant, was a pauper & was unable to pay the court-fees. a second application which was wholly unnecessary was attached to the application mentioned above & that has given rise to an objection by the opposite party that the second application was the real application under order 33 & was defective as it was not in accordance with the provisions of order 33, rule 2, civil p. c. we have looked into the.....
Judgment:

Malik, C.J.

1. This is a revision against an order passed by the learned first Civil Judge of Meerut rejecting an application for leave to sue in forma pauperis. An application was filed as required by Order 33 Rule 2, Civil P. C. The application contained the particulars required in regard to plaints. A schedule of the property belonging to the applicant was also given & the estimated value thereof & the document was signed & verified by the applicant. It was mentioned in the application that the applicant, was a pauper & was unable to pay the court-fees. A second application which was wholly unnecessary was attached to the application mentioned above & that has given rise to an objection by the opposite party that the second application was the real application under Order 33 & was defective as it was not in accordance with the provisions of Order 33, Rule 2, Civil P. C. We have looked into the first application which has been called 'the plaint' & are satisfied that the document fulfils the requirements of Order 33, Rule 2, Civil P. C. & the second application was redundant & not necessary.

2. The applicant is not possessed of any property. The suit is for specific performance of a contract of re-sale for Rs. 16,600. When she was asked where she would get the money from to re-buy the property, which had been sold in execution of a decree against her, she stated that her Son in-law & daughter would help her with money: Relying on a ruling of the Patna High Court in the case of Jaikishun Dass v. Ram Narain Dass, A. I. R. (26) 1989 Pat. 385, the lower Ct. came to the conclusion that the application must be rejected & permission to sue in forma pauperis should not be granted. We have looked into the decision mentioned above & with great respect to the learned Judges we do not find it possible to follow that decision. The learned Chief Justice in that case was of the opinion that Order 33, Rule 5, Civil P. C., was not exhaustive & 'merely states a series of circumstancesany one of which if proved compel the Court to reject the application.' Order 33, Rule 5, Civil P.C., is as follows:

'The Court shall reject an application for permissionto sue as a pauper--

(a) where it is not framed & presented in the mannerprescribed by Rules 2 & 3, & the applicant on being requiredby the Court to make any amendment within a time tobe filed by the Court, fails to do so, or

(b) where the applicant is not a pauper, or

(c) where he has, within two months next before thepresentation of the application, disposed of any propertyfraudulently or in order to be able to apply for permissionto sue as a pauper, or

(d) where his allegations do not show a cause of section, or

(e) where he has entered into any agreement with reference to the subject-matter of the proposed suit underwhich any other person has obtained an interest in suchsubject-matter.

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

The attention of the Bench does not appear to have bean drawn to Rules 6 & 7 of the Order. Rule 6 provides that where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day of which at least ten days' clear notice shall be given to the opposite party & the Govt. pleader) for receiving such evidence as the applicant may adduce in proof of his pauperism, & for hearing any evidence which may be adduced in disproof thereof. Rule 6, therefore, provides that where the application is not rejected by the Court in limine on any of the grounds stated in Rule 5 the Court has to fix a date & has to give notice to the opposite party to show cause why the applicant be not declared a pauper. Rule 7 then sets out the procedure at the hearing after service of notice & Sub-rule (2) of Rule 7 is as follows:

'The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application & 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,'

The Court has, therefore, to consider whether the applicant is a pauper & being satisfied on that point it has to consider again whether the applicant is or is not subject to any of the prohibitions specified in Rule 5. It appears clear to us therefore that the Court has only to consider first whether the applicant is a pauper & secondly whether any of the grounds mentioned in Rule 5 for the dismissal of the application exists. We are of the opinion that Rule 5 of Order 38, Civil P. C. was intended to be exhaustive.

3. Apart from that, Clause (e) of Rule 5 provides that where the applicant 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, the Court shall reject his application. To hold that in a case where the applicant has entered into no such agreement & has created no interest, in favour of a third party in the subject-matter in the suit the Court is still competent to dismiss the application would amount to making the provisions of this clause nugatory.

4. We are, therefore, of the opinion that thelearned Judge was wrong in his view that on thestatement made by the applicant that in case shesucceeded there son-in-law & daughter would helpher to pay the sale consideration was enough,even in the absence of any interest having been created in their favour, to justify the rejection ofthe application.

5. Learned counsel for the resp. has urged that we should not interfere under our revisional jurisdiction under Section 115, Civil P. C. It has been decided by a Full Bench of this Court in the case of Ramzan Ali v. Satul Bibi, 1948 A. L. J. 43, that an order like the one passed by the lower Court is a case decided. The only question is whether the lower Court in the exercise of its jurisdiction acted illegally or with material irregularity. There was a great deal of controversy on the meaning of those words & the decision of their Lordships of the Judicial Committee in the case of Amir Hasan Khan v. Sheo Baksh Singh, 11 Cal 6, & other cases only made it clear that Clause (c) of Section 115 does not include an error either of law or of fact, but it must be an error which affects the jurisdiction of the Court. In the latest decision, however, of their Lordships of the Judicial Committee in the case of Joy Chand Lal v. Kamalaksha, 1949 A. L. J. 273, their Lordships have made it clear that although an error either of law or of fact in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify an interference in revision, but if, by reason of such a mistake, the Court has invested itself with a jurisdiction which in law it does not possess, the High Court can, in the exercise of its revisional jurisdiction, interfere & set aside the erroneous decision on the basis of which the lower Court has assumed jurisdiction. By way of example their Lordships have quoted cases of wrong decisions on questions of limitation & res judicata,. In the case before us the lower Court has purported to dismiss the application on certain extraneous & irrelevant considerations, on a ground which could not be the basis of such decision. The Court had, therefore, invested itself With a jurisdiction which in law it did not possess. We find it difficult to distinguish the mistake made by the lower Court from mistakes such as on a point of limitation or on apoint of res judicata mentioned by their Lordships of the Judicial Committee. In the circumstances we feel satisfied that it is a fit case where we should interfere in the exercise of our revisional jurisdiction. We, therefore, allow this revision & set aside the order passed by the lower Court & as it was not denied that the applicant is a pauper we grant her application for leave to sue in forma pauperis,

6. In view of the circumstances of the case, we do not propose to make any order as to costs. The parties will bear their own costs.


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