1. The question We have to consider in this miscellaneous petition is whether the petitioner can claim to be a pauper under Order 33 of the Code of Civil Procedure. Apparently, Order 33 applies only to suits. The Supreme Court has said in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 that the jurisdiction of a High Court to issue a writ under Article 226 of the Constitution is original jurisdiction as distinguished from the appellate or revisional jurisdiction and that it may be described as extraordinary original jurisdiction. In another decision, viz., Khajoor Singh v. Union of India, AIR 1961 SC 532, the Supreme Court has said that the proceedings under Article 226 are not suits. It is thus clear beyond doubt that Order 33 of the Code of Civil Procedure, which applies only to suits, cannot apply to proceedings under Article 226 of the Constitution, which are not suits.
2. Mr. M. S. Kurien, the counsel of the petitioner, has brought to our notice the decision of the Calcutta High Court in Krishnalal Sadhu v. State of West Bengal, AIR 1967 Cal 275, where a Division Bench of the Calcutta High Court has held that Order 22 of the Code of Civil Procedure applies to proceedings under Article 226. The correctness of this decision need not be considered by us in this case, because what we have to consider here is only whether Order 33 of the Code of Civil Procedure applies to proceedings under Article 226 of the Constitution.
3. We have also a Division Bench decision of our High Court in Raghavan v. Govt. of Kerala, (C. M. P. No. 11141 of 1970 (Ker.)), where the learned Judges have said that Orders 33 and 44 of the Code of Civil Procedure do not apply to Writ petitions and appeals therefrom.
4. The petition is dismissed.
5. A week is allowed for paying court-fee.