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Sibasankar Tiadi Vs. Koli Tihadhiani and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 233 of 1962
Judge
Reported inAIR1964Ori106; 29(1963)CLT681
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rules 4, 5, 6 and 7
AppellantSibasankar Tiadi
RespondentKoli Tihadhiani and ors.
Appellant AdvocateH.G. Panda and ;D. Panda, Advs.
Respondent AdvocateStanding Counsel and ;B.K. Pal, ;D.P. Mohapatra and ;G.B. Patnaik, Advs.
DispositionRevision allowed
Excerpt:
.....may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof. it is quite clear that rule 6 would not come into operation unless the court is satisfied that the petitioner fulfils the requirements of rule 5. rule 6 categorically prescribes that the evidence to be received must be confined to questions of proof or disproof of pauperism and on no other matter the evidence can be permitted to go in......come into operation unless the court is satisfied that the petitioner fulfils the requirements of rule 5. rule 6 categorically prescribes that the evidence to be received must be confined to questions of proof or disproof of pauperism and on no other matter the evidence can be permitted to go in.4. rule 7 prescribes the procedural hearing : 'procedure at hearing.-- (1) on the day so fixed or as soon as thereafter as may be convenient, the court shall examine the witnesses (if any) produced by either, party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence.(2) the court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by.....
Judgment:

G.K. Misra, J.

1. Plaintiff is the petitioner. He filed a suit in forma pauperis in MJC 22 of 1962 in the Court of the Munsif of Aska. On the very day (31-1-1962) the petition was filed, he was examined on oath by the learned Munsif. In that statement he clearly stated in terms of Order 33, Rule 5(c) and (e), C. P. C. A notice was issued on the opposite parties and the Government. There was contest on the question of pauperism. The learned Munsif found that the petitioner was a pauper. He, however, dismissed the application under Order 33, Rule 1, C. P. C. holding

'Even though by his evidence the petitioner was able to establish his lack of means to pay the necessary court-fee still he is bound to fail as he did not make out the other ingredients for granting him permission to sue as a pauper as prescribed under Order 33 Rule 5, C. P. C. He remained completely silent about those ingredients.'

2. One is at a loss to appreciate as to what exactly are the other ingredients under Order 33, Rule 5, the learned Munsif wanted the petitioner to satisfy. The Court shall reject an application for permission to sue as a pauper if the petitioner does not satisfy the Court with regard to the requirements laid down in Order 33, Rule 5, C. P. C. Order 33, Rule 5, C. P. C. may be quoted :

'5. Rejection of application.-- 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 Rules 2 and 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, or

(f) Where he has entered into an agreement with any other person to finance the litigation.'

In the solemn affirmation made on 31-1-1962, the petitioner asserted in terms of Rule 5(b), (c), (e) and (f). The accompanying plaint satisfies the other tests required. The result therefore was that the Court was satisfied that the requirements of Order 33, Rule 5 were fulfilled. It is after such satisfaction that the notices to the opposite parties and the Government are to be issued and such notices were directed to be issued by order dated 31-1-1962.

3. Rule 6 clearly lays down that if the Court sees no reason to reject the application on any of the grounds, stated in Rule 5, it shall fix a date (of which at least 10 days clear notice shall be given to the opposite parties and the Government pleader) for receiving such evidence as the petitioner may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof. It is quite clear that Rule 6 would not come into operation unless the Court is satisfied that the petitioner fulfils the requirements of Rule 5. Rule 6 categorically prescribes that the evidence to be received must be confined to questions of proof or disproof of pauperism and on no other matter the evidence can be permitted to go in.

4. Rule 7 prescribes the procedural hearing :

'Procedure at hearing.-- (1) On the day so fixed or as soon as thereafter as may be convenient, the Court shall examine the witnesses (if any) produced by either, party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence.

(2) The Court shall also hear any argument which the parties may desire to offer 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 prohibition specified in Rule 5.

(3) The Court shall then either allow or refuse the applicant to sue as pauper.'

This rule makes it clear that though the evidence would be confined only to the question of pauperism, argument can be advanced with reference to all matters comprised in Rule 5. In other words, it is open to the opposite parties or to the Government to bring to the notice of the Court that the petitioner did not fulfil the requirements laid down in Rule 5.

5. In this particular case, if a bare referencewould have been made to the solemn testimonyof the petitioner recorded on 31-1-1962, theopposite parties would not have possibly advancedany argument to the contrary. The learnedMunsif, therefore, illegally exercised his jurisdiction in holding that in the further evidence, afterissue of notices, the petitioner should have madestatements pertaining to the requirements in Rule 5.The order is manifestly without jurisdiction andillegal and must be set aside. The revision isallowed. As there is no opposition either from theGovernment or from the other side, there will beno order for costs.


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