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Fakir Mohebubshah Vs. Bai Chandbu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1364 of 1970
Judge
Reported inAIR1972Guj270; (1973)GLR187
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rules 1, 2, 3, 6 and 7
AppellantFakir Mohebubshah
RespondentBai Chandbu and ors.
Appellant Advocate S.B. Majmudar, Adv.
Respondent Advocate J.R. Nanavati, Asst. Govt. Pleader
Cases ReferredNirmal Kumar Mitra v. Monoranjan Chatterjee
Excerpt:
.....when inquiry held under section 7 with view to granting or refusing to grant permission to sue as pauper date of permission to file application must be taken into consideration - subsequent events be relevant only in inquiry under rule 9 - well demarcated division between inquiry under rule 7 and rule 9 - in inquiry under rule 7 status of person applying to sue as pauper should be examined with reference to date on which application presented and subsequent events to be ignored - in facts and circumstances of case applicant declared pauper. - - order 1. a very interesting question as to he interpretation of o. 5 must be satisfied. in making this inquiry which would be something like an ex parte inquiry, before notice to the opposite party, the court may also try to ascertain..........some events have occurred, between the presentation of the application for permission to sue as a pauper and date on which the inquiry under r. 7 is held, which may radically change the position of the applicant, it would be an idle formality first to hold an inquiry with reference to the date of the presentation of the application and permitting the party to sue as a pauper and then face the application under r. 9 for dispaupering the applicant. such an eventuality cannot be held wholly ruled out. but looking to the scheme of rr. 1, 2, 3, 6 and 7 it is indisputable that when an inquiry as to sufficiency or otherwise of the means of a person who has made an application for permission to sue as a pauper is made, the inquiry must be made with reference to the date on which the application.....
Judgment:
ORDER

1. A very interesting question as to he interpretation of O.33, R.1 of the Code of Civil Procedure has been raised in this petition. Opponent No.1 Bai chandbu made an application for permission to sue as a pauper. This application was presented on 5th April, 1968. A notice was issued upon the petitioner, respondent No.2 and the district government Pleader, fixing the day for receiving evidence as the application may adduce in proof of her pauperism and for hearing any evidence which may be adduced in disproof thereof as provided by O.33, R.6. the application was taken up for hearing on 2nd April, 1970. When the applicant tendered evidence in proof of her pauperism, a question was asked in her cross-examination on behalf of the opponent that her husband died leaving some property and in answer to this question, the applicant Bai Chandbu stated that her husband died about six months back leaving the house and lands bearing S.Nos.281, 372 and 43/2 . it was then submitted to the learned Judge inquiring into the claim of pauperism by the applicant that she had a share in the property left by her husband and therefore, she was possessed of sufficient menas which would enable her to pay court-fees prescribed by law for the plaint and, therefore, her application for permission to sue as a pauper should be rejected. The learned Judge rejected this contention observing that while making an inquiry under O.33, R.7, the inquiry has to be made with reference to the date on which an application for permission to sue as a pauper is presented and at that stage, it would not be relevant to inquire about the subsequent events which, if taken into consideration, may have bearing on the question whether the applicant continues to be a pauper or not. Thus observing, the learned Judge granted the application under R.8. Original defendant No.1 has challenged the correctness of this order in this revision application.

2. The question that arises for determination is as to which is the relevant date with reference to which the inquiry into the status of the applicant who has made an applicant for permission to sue as a pauper should be made. In other words, while making an inquiry under O.33, R.7, to ascertain whether the applicant, who has made an application for permission to sue as a pauper, is a pauper or not, the circumstances bearing upon the subject as in existence on the date of the application, should alone be taken into consideration, or whether some subsequent events, which may have a bearing on the subject, may also be taken into consideration, before granting permission to sue as a pauper. There is Explanation appended to Rule 1 which is material. It reads as under:--

'Explanation.-- A person is a 'pauper' when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject-matter of the suit.'

Rule 2 provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; a schedule be annexed thereto showing the moveable or immoveable property belonging to the applicant with the estimated value thereof. Rule 3 provides that application for permission to sue as a pauper shall be presented to the Court by applicant in person, unless he is exempted from appearing in Court, in which case, the application may be presented by an authorised agent. Rule 4 provides that where the application is in proper form and duly presented, the court may, if it thinks fit, examine the applicant, or his agent, when the applicant is allowed to appear by the agent, regarding the merits of the claim and the property of the applicant. Rule 5 confers powers upon the Court to reject the application at that stage on any of the grounds mentioned in clauses (a) to (e) of R.5. if the Court sees no reason to reject the application under R.5, it has to fix a date under R.6, for receiving evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof. For this purpose, the Court has to serve a notice upon the opponents, that is, the defendants and the District Government Pleader. Then comes R.7 which reads as under:

'7. (1) On the day so fixed or as soon 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 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.

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

Rule 8 provides that if the application made by the applicant is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee. Then comes Rule 9 which provides that the Court may, on the application of the defendant or of the Government Pleader, of which seven days' clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered on any of the grounds mentioned in the rule. One of the grounds on which the plaintiff can be dispaupered is if it appears that his means are such that he ought not be continue to sue as a pauper. Other two grounds are not relevant for the purpose of this revision application.

3. Having examined the scheme of O. 33, I may briefly state the circumstances in which the question now posed arises in this proceeding. Respondent No. 1 Bai Chandbu filed an application being Misc. Application No. 2 of 1968 in the Court of the Civil Judge (Junior Division). Lunavada, under O. 33, praying for a permission to sue as a pauper. She stated that on proper computation of the court-fees, looking to the valuation placed on the reliefs claimed in the suit, she would be liable to pay Rs. 342 as court-fees. She has further stated that she is not possessed of sufficient means to pay court-fees prescribed by law and therefore, she should be permitted to sue as a pauper. After the notice was issued upon the defendant and the District Government Pleader, when the inquiry was held under R. 7 in April, 1970, a question was asked in the cross-examination of the applicant Bai Chandbu that her husband had died leaving property to her to which she replied that her husband died about six months back leaving a house and three fields. On eliciting this answer, an argument was advanced on behalf of the defendants in the application that she must have some share in the property left by her husband and, therefore, she is now possessed of sufficient means to pay court-fees. Now, it is admitted that on the day on which Bai Chandbu made an application for permission to sue as a pauper, that is on 5th April, 1968, her husband was alive. Parties being Mohamedans, the wife had no interest in the property of the husband in the lifetime of the husband. Bai Chandbu had further stated that she had no property exceeding her wearing apparels. If the inquiry as to the means of Bai Chandbu was made keeping in view the relevant date, namely, date on which she made application, there is no controversy that she was not possessed of sufficient means to enable her to pay court-fees prescribed by law. But it was contended that before the inquiry could be completed under R. 7 an event has occurred which. If properly evaluated, would show that she has now some property and if that aspect is taken into consideration, her contention that she was not possessed of sufficient means to enable her to pay the prescribed court-fees, cannot be accepted and, therefore, she should not be permitted to sue as a pauper.

4. The question, therefore, is : what is the relevant date with reference to which the inquiry under R.7 shall be made in order to find out whether applicant who has made an application for permission to sue as a pauper, is a pauper or not. As this is the case in which the relief prayed for is capable of valuation for the purpose of court-fees, case of the applicant would fall in the first part of the Explanation to R. 1, which provides that a person is a 'pauper' when he is possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit. I need not take into consideration second part of the Explanation.

5. Now, Section 5 of the Bombay Court Fees Act provides that no document of any kind specified as chargeable in the First or Second Schedule to the said Act, shall be filed, submitted, or recorded in any Court of Justice, or shall be received or furnished by any Public Officer, unless in respect of such document, there has been paid fee, the amount not fees than that indicated by either of the said Schedules as proper fee for such document. Plaints in respect of different types of suits have been set out in Schedule I. When ever a plaint is presented to a Court, the fees payable in respect of such a plaint must have been paid before it is presented to the Court. Unless it is paid, it is not receivable by Court. O. 7, R. 11 provides that plaint shall be rejected, where the relief claimed is property valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court, fails to do so. Whenever, therefore, a plaint is presented to a Court, the court-fees payable in respect of it shall be paid at the time of the presentation to the Court. Of course, if the Court finds that proper court-fees are not paid an opportunity has to be given to the plaintiff to pay deficit court-fees, failing which, the plaint is liable to be rejected. Ordinarily, therefore, the court-fees in respect of the plaint must be paid at the time of the presentation of the plaint in the Court. Now, if there was no provision such as the one contained in O. 33, no one will be entitled to present a plaint to the Court in respected of which prescribed court-fees are not paid as the plaint is liable to be rejected with this exception that the Court may give an opportunity to the plaintiff to pay up the prescribed court-fees. O. 33, R. 2 permits a person who is incapable of paying court-fees for want of sufficient means to present an application for permission to sue as a pauper. And if such an application is granted, that application will be deemed to be a plaint and would be registered as such under R. 8 without necessary court-fees. In order to be able to file a suit as a pauper, the conditions prescribed in O. 33, R. 1 read with its Explanation and R. 5 must be satisfied. Now. Explanation to R. 1 provides that a person would be a 'pauper' when he is not possessed of sufficient means to enable him to pay fee prescient by law for the plaint in such suit. It is such a person who can make an application under R.2 for permission to sue as a pauper. It is in respect of such a person that an inquiry has to be made whether he is one who is not possessed of sufficient means to enable him to pay fee prescribed by law for the plaint in such suit. Obviously, but for O. 33, whenever a plaint is presented, court-fees in respect of such a plaint ought to be paid. If, therefore, the Court has to inquire whether the person who has to pay court-fees, has made an application for permission to sue as a pauper, which would mean that he is a person who is not possessed of sufficient means to enable him to pay prescribed court-fees for the plaint in such suit, the inquiry must be relevant to the date on which application is presented. It is with reference to that date that an inquiry has to be made whether the applicant is such a person who is not possessed of sufficient means to pay prescribed court-fees. Rr. 3, 4 and 6 provide a special mode of presentation of such an application, and obligation of the Court to make prima facie inquiry in respect of such as application having power to reject it in limine. In making this inquiry which would be something like an ex parte inquiry, before notice to the opposite party, the Court may also try to ascertain whether the applicant is or is not a pauper. Obviously, that inquiry can be with reference to the ability of the applicant on the date of the presentation of the application. No other date can be envisaged.

6. After the application is admitted, a notice would be issued as required by R. 6 and inquiry would be held as required by R. 7. Now, it may be that some time may elapse between presentation of the application and return of the notice and holding of the inquiry after appearance of the opposite party. Even when the inquiry is held on such a date, the relevant date with reference to which position of the applicant is to inquired into would be the date on which he presented the application. Merely because the opposite party would take some time to appear and some time would be spent in serving notice, the date with reference to which position of applicant is to be inquired into cannot change. Therefore, even when inquiry is held under R. 7 as to whether the applicant who has made application for permission to sue as a pauper is or is not a pauper would have to be made with reference to the date on which the application is made. In an inquiry under R. 7, intervening circumstances cannot be taken into consideration. There is a specific provision in R. 9 which enables the opposite party to move the Court for dispaupering the person who is permitted to sue as a pauper. Of course there is some force in the submission of Mr. S. B. Majmudar for the petitioner that if some events have occurred, between the presentation of the application for permission to sue as a pauper and date on which the inquiry under R. 7 is held, which may radically change the position of the applicant, it would be an idle formality first to hold an inquiry with reference to the date of the presentation of the application and permitting the party to sue as a pauper and then face the application under R. 9 for dispaupering the applicant. Such an eventuality cannot be held wholly ruled out. But looking to the scheme of Rr. 1, 2, 3, 6 and 7 it is indisputable that when an inquiry as to sufficiency or otherwise of the means of a person who has made an application for permission to sue as a pauper is made, the inquiry must be made with reference to the date on which the application is presented No other date can be envisaged.

7. This construction gets some support from the language of R. 9. R. 9 provides that the Court may, on the application of the defendant or of the District Government Pleader, of which seven days' clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered:

'(b) if it appears that his means are such that he ought on to continue to sue as a pauper.' Words 'to the meaning of sub-clause (b) of R. 9. It postulates that on the date of the making of the application, a person making the application was a pauper. But some subsequent events have occurred, which have radically changed his position qua his ability to pay court-fees and, therefore, even though he was a pauper, he should not be allowed to continue to sue as a pauper and therefore, he should be dispaupered. Use of the expression 'to continue to sue as a pauper would show that on the date of the application, the person was pauper but the events subsequent to the presentation of the application would indicate that he has become possessed of sufficient means which would enable him to pay proper court-fees and, therefore, he should not be permitted to continue to sue as a pauper. Continuance of a status presupposes the existence of change brought about in the status subsequent time when the status was inquired in to an established.

8. Upon a true construction of the various rules of O. 33, it becomes crystal clear that when an inquiry is held under R. 7, with a view to granting or refusing to grant permission to sue as a pauper, an inquiry into the status of the applicant applying to sue as a pauper, has to be made with reference to the date on which application for permission to sue as a pauper was presented and the events subsequent to that date should not be taken into consideration. Subsequent events would be relevant only in an inquiry under R. 9. Similarly in an inquiry under R.9 events that occurred prior to the presentation of the petition and were relevant in an inquiry under R. 7 would be wholly irrelevant. Therefore, there is a clear cut and well demarcated division between the inquiry under R. 7 and inquiry under R. 9. In an inquiry under R. 7, status or position of the person applying to sue as a pauper should be examined with reference to the date on which the application is presented and subsequent events should be ignored. They would be relevant only in an inquiry under R. 9.

9. I may now refer to some of the authorities to which my attention was drawn at the hearing of this revision application. The view, that I am taking would get support from some of the observations in Bai Balagauri v. Motilal Ghelabhai , ILR 47 Bom 523 = (AIR 1923 Bom 247). In that case, the applicant presented an application to the Court to file a suit in forma pauperis for recovering her palla ornaments and maintenance. The defendant produced a few of the ornaments and cash which, as admitted by him, belonged to the plaintiff and worth about Rs. 600 and stated that he was willing to give them to the applicant and, therefore, she was possessed of sufficient means to pay the court-fees. The Court, before whom the application was pending, refused permission to the applicant to sue as pauper and directed her to pay the court-fees. This order was challenged in revision application before a Division Bench of the Bombay High Court. Allowing the revision application, it was observed that the time when the application is made to institute a suit as a pauper, is the point of time which the Court has to consider when the application comes to be dealt with, and the subject-matter of the suit is in no case at the disposal of the applicant for payment of fees. If, however, at any point of time afterwards, it is alleged that the applicant has become possessed of sufficient means to pay the fees, then no doubt when that fact is brought to the notice of the Court, the question of pauperism would be considered, and the party once held to be a pauper might be directed to pay the court-fees. It is thus crystal clear that the inquiry under R. 7 is with reference only to the date on which the application is presented and subsequent events cannot be taken into consideration. While disposing of the aforementioned case, the Division Bench of the Bombay High Court also referred to a decision of the learned Single Judge in Dwarkanath Narayan v. Madhvrav Vishvanath, (1886) ILR 10 Bom 207, and declined to follow it. In fact, Mr. Majmudar has relied upon, to a considerable extent, on this Dwarkanath's case, (1886) ILR 10 Bom 207 but as the Division Bench has declined to follow it, the ratio therein is no good law. In Provesh Chandra v. Municipal Commr. Howrah : AIR1930Cal147 , the applicant, who applied for a permission to sue as a pauper, had prayed for two reliefs, one of damage and the other of recovery of provident fund amount. At the time of the inquiry under R. 7 the opposite party offered to pay provident fund amount to the tune of Rs. 1307-10-6 and called upon the applicant to take away the amount as and when he desired. Having made this statement, in the written statement, a contention was raised that the applicant could not be said to be a person who was not possessed of sufficient means to enable him to pay court-fees. This contention was negatived observing that in considering the question of pauperism, one must look at the matter as it stood at the date when the application was made. If the circumstances of the petitioner on the date of the said application bring him within the terms of the Explanation and are sufficient to have him declared as a pauper, the immunity that the law confers upon him for the purpose of court-fees will be enjoyed by him till the termination of the suit or until such time when sufficient materials would be forthcoming to justify an order cancelling the permission. The view, that I am taking , is accord with the view taken by the Calcutta High Court.

10. Mr. Majmudar referred to (Gadigi) Muddorappa v. G. Rudramma, AIR 1921 Mad 97. In that case, the applicant, who made application for permission to sue as a pauper, admitted in the inquiry under R. 7 that after institution of the petition, she received some money from the person against whom she intended to file a suit and she further stated that she had paid away that amount to the creditor. The learned Single Judge of the Madras High Court rejected the application for permission to sue as pauper observing that there was so dispute that at the date of her application she was a pauper. But as soon as she received money after institution, she ceased to be a pauper and therefore, application cannot be granted. There is absolutely no discussion as to the scheme of O. 33 and it is rather difficult to agree with the ratio of the decision. Mr. Majmudar also referred to Nirmal Kumar Mitra v. Monoranjan Chatterjee : AIR1955Cal192 . The point raised herein was not raised before the Division Bench of the Calcutta High Court and this decision would not assist me in any manner in this case. Head - note of a case in the Fifty Years Digest from Cuttack was read out to me but I would not examine it for want of details.

11. In view of the aforesaid discussion, this revision application fails and is dismissed. Rule is discharged with no order as to costs.

12. Revision dismissed.


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