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Atmaram and anr. Vs. Smt. Amola Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 265 of 1958
Judge
Reported inAIR1959MP402
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rules 3 and 4
AppellantAtmaram and anr.
RespondentSmt. Amola Bai and anr.
Appellant AdvocateM.L. Shrivastava, Adv.
Respondent AdvocateV.S. Pandit, Adv.
Cases ReferredGovindaraju Mudaliar v. Hanumantha Rao
Excerpt:
.....can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - the pleader for the petitioner then presented the plaint as well as an application under order 33, rules 1, 2 and 3 read with section 151 of the code in that particular court......plaint to follow once again the procedure prescribed by order 33, rules 3 and 4, of the code of civil procedure.2. the non-applicant no. 1 filed an application for permission to sue as a pauper in the court of civil judge, first class, bilaspur. that application was allowed and her suit valued at rs. 7,109/8/- was registered. subsequently the applicant appeared to be entitled to a lesser share of smaller value in the property and she was permitted to amend the plaint which was, therefore, returned for presentation to the proper court.on being represented through counsel in the court of second civil judge, bilaspur, the question was raised whether the procedure prescribed by order 33, rules 3 and 4, civil procedure code, had to be followed afresh. the counsel for the non-applicant no......
Judgment:
ORDER

K.L. Pandey, J.

1. This revision is directed against an order of the Second Civil Judge, Bilaspur, dated 24 June, 1958 by which he held that it was- unnecessary for a represented plaint to follow once again the procedure prescribed by Order 33, Rules 3 and 4, of the Code of Civil Procedure.

2. The non-applicant No. 1 filed an application for permission to sue as a pauper in the Court of Civil Judge, First Class, Bilaspur. That application was allowed and her suit valued at Rs. 7,109/8/- was registered. Subsequently the applicant appeared to be entitled to a lesser share of smaller value in the property and she was permitted to amend the plaint which was, therefore, returned for presentation to the proper Court.

On being represented through Counsel in the Court of Second Civil Judge, Bilaspur, the question was raised whether the procedure prescribed by Order 33, Rules 3 and 4, Civil Procedure Code, had to be followed afresh. The counsel for the non-applicant No. 1, being in doubt about the position, made an application under Section 151 of the Code to seek the required permission. Even so, the Court overruled the contention and passed the impugned order.

3. The requirement as to the presentation of an application to sue as a pauper in person under O, 33, Rule 3, Civil Procedure Code, is mandatory and if it is not observed, the application must be rejected under Rule 5 of that Order.

4. The facts of the case reported in Subbarao v. Venkataratnam, AIR 1929 Mad 828, were different. Even in Papathi Ammal v. Karuppiah, AIR 1931 Mad 418, the parties agreed in writing that the suit according to the valuation be tried by a particular Court and the plaint, which had been admitted, was thereupon returned for presentation to that Court. The pleader for the petitioner then presented the plaint as well as an application under Order 33, Rules 1, 2 and 3 read with Section 151 of the Code in that particular Court.

The objection that there was no proper presentation under Rule 3 was repelled On the ground that the representation was made in pursuance of the order of the Court and the parties themselves had agreed to the adoption of that course.

5. The case Govindaraju Mudaliar v. Hanumantha Rao, AIR 1945 Mad 7, is more in point, the only difference being that, after return, the plaint was amended before representation. In this case, as shown, the plaint was amended in the First Court before it was returned and represented. So far as the plaint as represented is concerned, there could be no valid presentation in the first Court. Moreover, the original plaint for which leave was obtained in the First Court was different from the one represented.

It may be that the non-applicant No. 1 is not able to pav the fee prescribed for the claim in the original plaint. It does not necessarily follow that that is also the position in regard to the claim of lesser value in the plaint as represented. In the circumstances, the procedure of Order 33, Rules 3 and 4, Civil Procedure Code, had to be followed.

6. The order of the lower Court dated 24 January, 1958 to the effect that the order of the First Court granting leave to sue as a pauper was binding on it and it was unnecessary to consider the application under Section 151, Civil Procedure Code, is set aside. The case is remanded to the lower Court for disposal of the case with advertence tothe observations in the previous paragraph. In thecircumstances, there will be no order about costs.


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