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Hara Satnami Vs. Dhaneswar Putel and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 35 of 1977
Judge
Reported inAIR1978Ori218; 45(1978)CLT431
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 1
AppellantHara Satnami
RespondentDhaneswar Putel and anr.
Appellant AdvocateR.C. Patnaik and ;P.K. Misra, Advs.
Respondent AdvocateJ.K. Mohanty and ;D.P. Sahoo, Advs. for Respondent No. 1
DispositionAppeal allowed
Cases Referred(Chandumal v. Tejulbai
Excerpt:
.....statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the..........himself, and not his next friend or near relations, is to be considered. in this connection, the decision reported in air 1929 lah 746 (2) (sharan singh v. mt. man kaur); air 1946 lah 81 (mohammad ashraf v. muhammad bibi); air 1970 delhi 81, (kewal krishan v. khazan singh) be seen.in the case reported in (1881) ilr 3 mad 3 (venkatnarasayya v. achemma) it has been held that--'there is no rule which requires that the circumstances of the next friend should be considered. in golaupmonea dossee v. prosonomoye dossee ((1873) 11 beng lr 373) it was held that an infant may sue in forma pauperis by a next friend who is also a pauper. the court of the sadr adalut of this presidency held that the circumstances that the next friend was possessed of means did not disentitle a minor to sue in forma.....
Judgment:

S. Acharya, J.

1. The appellant filed a petition in the court below under Order 33, Rule 1, C. P. C. to allow him to prosecute his suit as an indigent person. That petition was dismissed by the impugned order and hence this appeal.

2. The court, as I find from the impugned order, has rejected the aforesaid petition of the appellant mostly on the consideration that his 'natural faher, who is representing the minor plaintiff-petitioner in the suit as his next friend, has Ac. 8.29 decimals of land.

3. In dealing with a matter of this nature the financial capacity of the plaintiff himself, and not his next friend or near relations, is to be considered. In this connection, the decision reported in AIR 1929 Lah 746 (2) (Sharan Singh v. Mt. Man Kaur); AIR 1946 Lah 81 (Mohammad Ashraf v. Muhammad Bibi); AIR 1970 Delhi 81, (Kewal Krishan v. Khazan Singh) be seen.

In the case reported in (1881) ILR 3 Mad 3 (Venkatnarasayya v. Achemma) it has been held that--

'There is no rule which requires that the circumstances of the next friend should be considered. In Golaupmonea Dossee v. Prosonomoye Dossee ((1873) 11 Beng LR 373) it was held that an infant may sue in forma pauperis by a next friend who is also a pauper. The Court of the Sadr Adalut of this Presidency held that the circumstances that the next friend was possessed of means did not disentitle a minor to sue in forma pauperis.'

Their Lordships have held that there is nothing in the Civil Procedure Code which prohibits the minor from suing in forma pauperis when the next friend has substantial means.

In view of the consistent view held in our country on this question as stated above, the head note (b) in the decision reported in AIR 1933 Sind 82 (Chandumal v. Tejulbai) read along with what is stated in column 2 of page 84 of that decision appears to be the contention of the counsel appearing for the petitioner in that case.

4. On a perusal of the impugned order I hold that the court below was not justified in rejecting the said petition of the appellant on the reasons and grounds stated in the impugned order. Hence, the impugned order is set aside. The court below shall deal with and decide this matter afresh in accordance with law on giving another opportunity to both the parties to adduce relevant and proper evidence on this aspect of the matter, if they so desire. Notice under Order 33, Rule 6 should be given to the Govt. Pleader before recording any such evidence. The matter however must be disposed of within two months from the receipt of the lower court records with intimation to this Court,

5. The appeal accordingly is allowed. Parties to bear their own costs of this appeal.

The L. C. R. be sent back to the court below immediately.


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