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Kanji Mulji Kanani Vs. Manglaben Parmanand - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 298 of 1968
Judge
Reported inAIR1969Guj308; (1969)GLR1011
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(16), 2(18), 16, 25, 26, 115, 122, 125 and 141 - Order 4, Rule 1 - Order 6, Rule 17 - Order 7, Rules 10 and 11 - Order 23, Rule 1 - Order 33, Rules 1, 2, 3, 6, 7, 8, 15 and 16 - Order 43, Rule 1; Bombay Court Fees Act, 1959 - Sections 5, 5(1) and 7 - Schedule - Articles 1, 2, 3, 4, 5, 6 and 7
AppellantKanji Mulji Kanani
RespondentManglaben Parmanand
Appellant Advocate K.N. Mankad, Adv.
Respondent Advocate K.G. Vakharia, Adv.
DispositionPetition dismissed
Cases ReferredTirkha v. Ghasi Ram
Excerpt:
family - maintenance - sections 2 (16), 2 (18), 16, 25, 26, 115, 122, 125 and 141, order 4 rule 1, order 6 rule 17, order 7 rules 10 and 11, order 23 rule 1, order 33 rules 1, 2, 3, 6, 7, 8, 15 and 16, order 43 rule 1 of code of civil procedure, 1908 and sections 5, 5 (1) and 7 of articles 1, 2, 3, 4, 5, 6 and 7 of schedule to bombay court fees act, 1959 - appellant filed suit in respect of recovery of arrears of maintenance and for charge to be kept over movable and immovable properties of her husband - petitioner-respondent contended that court had no jurisdiction in regard to claim and had no power to allow amendment application under order 6 rule 17 - court had no power to grant relief regarding keeping of charge over movable and immovable properties because those properties situated.....orderj.m. sheth, j.1. this is a revision application filed under section 115 of the civil procedure code by the original opponent against the order passed by the learned civil judge, junior division, okha mandal at dwarka in civil miscellaneous application no. 6 of 1966, below ex. 21, dated 8th november, 1967. 2. the facts giving rise to this revision petition are briefly stated as under-- 3. the present opponent who is the wife of the petitioner, filed the aforesaid civil miscellaneous application to allow her to file a suit in forma pauperis. the suit claim was in respect of recovery of arrears of maintenance to the tune of rs. 6,200/- a declaration was sought that she is entitled to get maintenance from her husband at the rate of rs. 200/- per month from 2nd november. 1966 she claimed.....
Judgment:
ORDER

J.M. Sheth, J.

1. This is a revision application filed under Section 115 of the Civil Procedure Code by the original opponent against the order passed by the learned Civil Judge, Junior Division, Okha Mandal at Dwarka in Civil Miscellaneous Application No. 6 of 1966, below Ex. 21, dated 8th November, 1967.

2. The facts giving rise to this revision petition are briefly stated as under--

3. The present opponent who is the wife of the petitioner, filed the aforesaid Civil Miscellaneous Application to allow her to file a suit In forma pauperis. The suit claim was in respect of recovery of arrears of maintenance to the tune of Rs. 6,200/- A declaration was sought that she is entitled to get maintenance from her husband at the rate of Rs. 200/- per month from 2nd November. 1966 She claimed the relief in regard to both these claims against the person and also against the moveable and immoveable properties of the present petitioner She prayed that for her maintenance amounts that be awarded, charge be kept over the moveable and Immoveable properties of her husband. The petitioner had these moveable and Immoveable properties within the jurisdiction of another Court, i.e. the Court of Mandvi, Kutch Admittedly, the move-able and immoveable properties of the petitioner were not within the jurisdiction of the Court of the Civil Judge, Junior Division. Okha Mandal at Dwarka.

3a. As the contention was raised by the petitioner in that application that the Court had no jurisdiction in regard to that claim, the present opponent gave this application Ex. 21, stating that to avoid a dispute in regard to it, she withdraws the relief regarding keeping of the charge on the moveable and immoveable properties for the maintenance amount She withdraws that relief That is how she has made an averment in this application of hers That application was opposed by the present petitioner on several grounds. We are concerned in this revision petition only with two grounds.

4. One ground is that the Court has no power to allow any such amendment application, under Order 6, Rule 17 of the Civil Procedure Code, or to allow such a withdrawal of the relief under the provisions of Order 23 of the Civil Procedure Code, which will be hereinafter referred to as the Code. The reason advanced is that there is no institution of the suit. The institution of the suit could be by presenting a plaint In a case like the present case, no such plaint is filed. The provisions of Order 33, Rule 8 of the Code indicate that such an application shall be deemed to be a plaint only after the opponent is given a permission to file a suit in forma pauperis That stage having not reached, there was no institution of the suit and eventually the Court could not have allowed this amendment of the plaint i.e. the application or could not have permitted the present opponent to withdraw the relief in regard to the charge.

5. The second ground urged is that the Court has no jurisdiction to entertain the suit as one of the relief's claimed is to keep a charge over the movable and immovable properties of the petitioner, her husband. Admittedly, the properties are situated outside the jurisdiction of the trial Court In view of the provisions of Section 16 of the Code, when the suit relates to moveable or immoveable property, the suit has to be filed within the limits of the Court where the moveable or immoveable property is situated. As the Court has no jurisdiction to entertain the suit on the aforesaid ground, the Court had no jurisdiction to allow such an amendment or to allow such withdrawal

6. These two submissions were made by the learned Advocate Mr. Mankad for the petitioner. In support of his arguments, he invited my attention to certain provisions of the Code of Civil Procedure and to certain decisions.

7. The learned Advocate Mr. Vakharla, appearing on behalf of the opponent, contended that the suit was instituted on the day the application was filed by the opponent for allowing her to file a suit in forma pauperis giving all the particulars as mentioned in Order 33. Rule 2 of the Code. He contended that there could be several modes of institution of a suit as contemplated by the Civil Procedure Code Ordinarily, a suit has to be instituted by presenting a plaint. The Code has prescribed also another mode. In case of a pauper, a suit can be instituted in the manner provided in Order 33 of the Code. Order 33, Rule 8 of the Code only indicates that after the permission to sue in forma pauperis is granted, the application is deemed to be a plaint That does not mean that till that stage is reached, there was no suit before the Court in the eyes of law. The suit was already instituted He, therefore, contended that the Court has power to allow such an amendment of the plaint or to allow such withdrawal of the relief. He invited my attention to several decisions in support of his arguments.

8. In regard to the second submission made by Mr. Mankad, Mr. Vakharia contended that this was not a case where the suit was beyond the pecuniary jurisdiction of the trial Court. The Court had the pecuniary jurisdiction to entertain the suit in question The Court had also jurisdiction to grant the relief in regard to the amounts claimed. A decree could be passed against the person of the present petitioner. The Court had no jurisdiction only to grant a relief regarding keeping of a charge over moveable and immoveable properties, the properties being situated outside the jurisdiction of the trial Court. That being the position the Court had jurisdiction to pass such an order.

9. In my opinion, an interesting question arises in this revision petition. That interesting question is whether it could be said that a suit has been instituted or not from the date the application to permit the opponent to file a suit in forma pauperis has been filed. The crux of the question arising in this revision petition is as to when it could be said that the suit has been instituted. If it could be said that the suit has been instituted on the date this application was filed by the opponent to permit her to file a suit in forma pauperis, the Court has power to allow the amendment of the plaint or has power to permit the withdrawal of the relief. If it could not be said that the suit has been instituted till the application to file a suit in forma pauperis is granted. It could be said with some force that the Court has no power to allow such an amendment or withdrawal as the Code contemplates the exercise of such powers in a suit. It could, then be said with some force that there being no suit in the eyes of law, the Court could not exercise such powers,

10. Before I advert to the authorities cited at the Bar in support of their rival contentions, I first propose to refer to certain provisions of the Code.

10a. Section 28 of the Code runs as under :--

'Every suit shall be Instituted by the presentation of a plaint or in such other manner as may be prescribed.'

A perusal of this section leaves no doubt that the Legislature did contemplate the institution of a suit merely by presentation of a plaint. It contemplated also another mode and that could be in such other manner as may be prescribed,

11. The word 'prescribed' has been defined in section 2(16) of the Code as under--

' 'Prescribed' means prescribed by rules.'

12. Order 4, Rule 1 of the Code which is material for our purposes, runs as under:--

'(1) Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.'

The first Schedule contains all these orders which are in the nature of rules. The word 'rules' has been defined in Clause (18) of Section 2 of the Code as under :--

'Rules, means rules and forms contained in the First Schedule or made under Section 122 or Section 125.'

If we now again refer to the provisions of Section 26, it appears from that section that a suit shall be instituted by presentation of the plaint or in such other manner as may be prescribed by the rules, meaning thereby rules contained in the first Schedule of the Code.

13. Order 4, Rule 1 referred to earlier, indicates that a suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. The plaint has to comply with the rules contained in Orders 6 and 7 so far as they are applicable.

14. Order 33 of the Code deals with a topic 'suit by paupers'. The marginal note is 'Suits may be instituted in forma pauperis'. Rule 1 of it runs as under--

'Subject to the following provisions, any suit may be instituted by a pauper. '

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 of it deals with a topic -- Contents of application. It runs as under:--

'Every application for permission to' sue as a pauper shall contain the particulars required in regard to plaints in suits: a schedule of any moveable or immoveable property belonging to the applicant, with the estimated value thereof shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.'

That rule indicates that in any such application for permission to sue as a pauper, all the particulars as required in regard to plaints in suits, are to be given. It is also to be signed and verified in the manner prescribed for signing and verification of pleadings.

15. Rule 3. Order 33 of the Code deals with a topic -- Presentation of application. Order 33. Rule 8 of the Code, on which emphasis is laid by the learned Advocate Mr. Mankad, in support of his arguments, runs as under:--

'Where the application 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 (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.'

It cannot be gainsaid that the provisions of this Rule 8 of Order 33 may indicate that till the application is granted, the application may not have been contemplated to be equated with the plaint It was only when the application is granted, it was deemed to be a plaint in the suit. In my opinion, the words 'in the suit' must be given their proper importance. If there was no institution of the suit on the date an application to permit the filing of a suit in forma pauperis was given, it does not stand to reason as to how it could be said that this particular document which was deemed to be a plaint when the application was granted, was a plaint in the suit. Furthermore, the latter part of that order, namely; 'the suit shall proceed in all other respects as a suit instituted in the ordinary manner ...' has its own significance. The word 'proceed' has also a significance. It means that a suit was already filed and after this application is granted, it has to proceed. The stage of proceeding will be reached after a suit is filed or instituted. What the Legislature has said by these provisions of Rule 8 of Order 33 of the Code is that after the application is granted, that application shall be numbered and registered and shall be deemed the plaint in the suit and after that is done, the suit has to 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 (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

16. Rule 15 of Order 33 of the Code runs as under :--

'An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any), incurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper.'

A perusal of this rule also indicates that even though an application to sue as a pauper has been rejected, the applicant is given a liberty to institute a suit in the ordinary manner. It also indicates that in case of a pauper, the Legislature intended the institution of a suit in the manner other than institution of a suit by presentation of a plaint.

17. In my opinion, to understand the real object of these provisions of the Code, it is necessary to refer to Section 5 of the Bombay Court-fees Act, 1959. Section 5(1) of it states:

'No document of any of the kinds specified as chargeable in the first or second Schedule to this Act annexed shall be filed, exhibited 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 a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document.'

If we now refer to the First Schedule, we find Articles 1 to 7 which indicate the Court-fees to be paid in regard to plaints referred to therein. It means that a plaint is a document which requires payment of Court-fees as shown in that Schedule I of the Bombay Court-fees Act, 1959. It means it is chargeable to Court-fees. Such a document, therefore, cannot be filed, exhibited or recorded in any Court of Justice in view of these provisions of the Court-fees Act. As seen earlier, Section 26 contemplates institution of a suit by presentation of a plaint ordinarily in case of a pauper, the pauper does not want to pay Court-fees as he is not in a position to pay Court-fees. The plaint requires payment of Court-fees and till the Court fees are paid, the plaint being a document, referred to in Schedule I, in view of these provisions of Court-fees Act, that document cannot be filed, exhibited or recorded in the Court of Justice. The Legislature has advisedly used the words in Section 25 -- 'Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.' In my opinion, this other manner has been prescribed in Order 33 of the Code. A suit having been not instituted in case of a pauper in the ordinary manner, i. e. by the presentation of a plaint, Order 33, Rule 8 of the Code states;

'Where the application 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 .......'

A perusal of all these sections and the rules of this Order and the relevant rules of other Order leave no doubt in my mind that the suit could be said to have been instituted on the date the application was filed to allow the opponent to file a suit in forma pauperis. No doubt, that application will be deemed to be the plaint when the application is granted and that application will be numbered and registered and be proceeded further as a suit instituted in ordinary manner thereafter. It cannot be said that the suit is instituted only when that application to file a suit in forma pauperis is granted. In the eyes of law, the suit is instituted on the date the application to file a suit, in forma pauperis has been filed. On account of the introduction of the deeming fiction after the application is granted, that application shall be deemed to be the plaint and eventually it can be said that the suit has been instituted in an ordinary manner. It does not mean that till then the suit was not instituted. It could only be said that the suit was not instituted in an ordinary manner till then and that cannot be done as section 5 of the Court-fees Act clearly lays down that a plaint cannot be filed or exhibited in any Court of Justice as it is chargeable to duty of Court-fees. That is the reason why this other manner has been prescribed. By prescribing the other manner, the suit can be said to have been validly instituted. After the application is granted that application is to be deemed the plaint and eventually it could be said that after the application is granted, that suit from that stage is instituted in the ordinary manner and the suit has to be proceeded further as if that suit is instituted in the ordinary manner, except in regard to payment of Court-fees.

18. The learned Advocate Mr. Mankad invited my attention to the decision of a Division Bench of the Calcutta High Court in the case of Thakurdas Majhi v. Chand Majhi, : AIR1960Cal538 . It has been observed therein as under:--

'It is true that, under Order 33, Rule 8, the pauper application, on being granted, is to be deemed to be the plaint of the pauper suit, which is ultimately registered. It may be true also that, for purposes of limitation, -- and may be for certain other purposes too, -- the suit must be deemed to have been filed, when the original pauper application was presented in Court. 'The suit, however, actually comes into existence, when the pauper application as the plaint in the suit is registered'.'

The observations underlined (here in` ') by me, no doubt lend somesupport to the argument advanced bythe learned Advocate Mr. Mankad. Inthat case the Division Bench had todeal with a question as to whether itwas necessary to issue summons underOrder 5 Rule 1 to the defendant after the application is granted and the suit has beenregistered.

19. It has been held therein: 'After the registration of the suit the defendant must be served under Order 5 Rule 1 with the summons unless the case comes within the proviso of Order 5, Rule 1, which contemplates the case of a defendant who has entered appearance at the presentation of the plaint and who has admitted the plaintiff's claim. The case of the defendant who had appeared in the pauper application, cannot be brought under the proviso.

The deeming provisions of Order 33, Rule 8 should not be construed or applied in such a manner as to whittle down the mandatory provision of Order 5, Rule 1 and to render it irrelevant and inapplicable to pauper suits for all practical purposes.'

20. A Division Bench of the Patna High Court, in the case of Gupteshwar v. Chaturanand : AIR1950Pat309 , has observed as under:--

'Under the provisions of Order 33, If is not open to the Court to which an application for leave to sue as pauper has been made under Order 33, Rule 2, to go into the question of valuation of the property, so as to determine the preliminary issue of jurisdiction, because it is a matter which arises only after the application has been granted and the application treated as a plaint, in answer to which the defendant has to raise his pleas in bar of the suit or of the jurisdiction of the Court.

It is not open to a Court to decide under Order 7, Rule 10, read with Section 141, Civil Procedure Code an objection as to its pecuniary jurisdiction and return an application for leave to sue as pauper for presentation to proper Court before granting it, as such an application is not deemed to be a plaint until it is granted and Order 7 relates to plaints. Section 141 which is a general provision is also excluded by the specific provisions in Order 33.'

With great respect to the learned Judges, there is nothing to indicate that the provisions of Section 141 of the Code cannot be pressed into service in view of the provisions contained in Order 33. Order 33 is not exhaustive. This decision is really a decision in regard to the question whether at the stage of hearing a pauper application, the Court can go into a question of valuation of the subject matter of the suit to determine its pecuniary jurisdiction as a preliminary question before deciding the merits of the application itself. No doubt, in the body of the judgment it has been stated therein at page 310:

'Order 33, Civil Procedure Code, does not, in terms, make any provision for return of the application for leave to sue as a pauper, in the event of the Court coming to the conclusion that the proposed suit, in connection with which the application for leave had been made, was beyond the pecuniary jurisdiction of the Court; nor, as will presently appear, is there any provision for recording evidence on the question of the true valuation of the property in question.'

After referring to several rules of Order 33 of the Code of Civil Procedure and particularly Rule 15, it has been observed as under:--

'It will thus appear that no provision has been made in Order 33, and particularly in Rules G and 7, for the reception of evidence on the question of valuation of the property to determine the pecuniary jurisdiction of the Court, if and when that preliminary question is raised in controversy. It will also appear that the rules in Order 33 contemplate either the granting or the rejection of the leave prayed for but not the return of the document which case law has described as of a composite nature comprising an application to sue as a pauper and a plaint It is only upon the application being granted that the document ripens into a plaint in the suit under Rule 8. So long as the leave prayed for has not been granted, it is not deemed to be a plaint and, therefore, cannot be returned as such, if the Court were to take the view that it was beyond the pecuniary Jurisdiction of the Court'

In para 4 the relevant observations are made at page 310 as under:--

'But it has been argued on behalf of the petitioner that the provisions of Order 7, Rule 10, read with those of Section 141 of the Code, entitled the Court to return the application for leave to sue as a pauper to be presented to the proper Court. But, in my opinion, this contention is not well founded. Order 7 relates to plaints, and, as already pointed out, such an application is not deemed to be a plaint until it has been granted. Section 141 of the Code has the effect only of assimilating the procedure in relation to suits to that in relation to all proceedings in any Court of Civil jurisdiction. These are generally provisions which, in my opinion, are excluded by the specific provisions laid down in Order 33 of the Code. It is true the Code is not exhaustive, but certainly it is exhaustive in matters specifically provided for. An order returning a plaint to be presented to the proper Court is an appealable order, so that, if the Court of First instance has determined the question of its jurisdiction one way or the other, it is open to the aggrieved party to prefer an appeal from that order to the appellate Court. But the question arises -- Is an order returning the application for leave to sue as a pauper to be presented to the proper Court such an order as comes within the purview of Order 43, Rule l(a)? In my opinion, it cannot come within the purview of clause (a) of Rule 1 of Order 43, because, at that stage, the application for leave to sue as a pauper could not be deemed to be a plaint'

It is significant to note that in that very decision at page 811, an earlier decision of the Patna High Court in the case of Bihari Sahu v. Mt. Sudama Kuer, AIR 1938 Pat 209 has been referred to, and after referring to it the following observations have been made:--

'The aforesaid decision was cited as an instance of the application under Section 141, Civil Procedure Code, to a matter arising under Order 33 of the Code. But that case is an authority only for the proposition that the Court hearing such an application has jurisdiction to allow amendment of the application, as Order 6 of the Code was not exhaustive of the powers of the Court in such matters. In that case, their Lordships pointed out that this Court had ruled in the case of Muhammad Nasrullah v. Muhammad Shakurullah, AIR 1925 Pat 30, that tha Court had no jurisdiction to take evidence on the question of limitation with a view to seeing whether the claim was or was not barred by limitation.'

It will be significant to note that the ratio laid down in the earlier decision by the Patna High Court -- AIR 1938 Pat 209 -- has not been said to be incorrect in this decision of a Division Bench of the Patna High Court

21. In the case of AIR 1938 Pat 209, a Division Bench of the Patna High Court has observed:

'The powers of Court under Order 6, Rule 17 are not exhaustive and the Court has jurisdiction to allow an amendment to be made in an application to sue as pauper.'

At page 210, in the body of the judgment the following observations have been made:--

'One property. It appeared, had been omitted from the application or the annexures to the application, and the learned Subordinate Judge gave the pauper applicant leave to make the necessary amendment. Upon this it has been urged by the Advocate General, who appears for the petitioners before us, that Order 6, Civil Procedure Code applies to the amendment of pleadings and not of applications to sue in forma pauperis. But it cannot be said that Order 6 is exhaustive of the powers of the Court to such a matter, and 1 have not the slightest doubt that the Court had jurisdiction to allow the amendment to be made.'

This decision lends support to the argument advanced by the learned Advocate Mr. Vakharia. This decision clearly indicates that an application to file a suit in forma pauperis can be allowed to be amended by the Court

22. The learned Advocate Mr. Mankad invited my attention to the decision of a Division Bench of the Hyderabad High Court, in the case of Narsingh Das v. Rati Ram. AIR 1956 Hyd 41. The relevant observations are as under:--

'No doubt, a plaint can be rejected under Order 7, Rule 11 but to attract the provisions of that rule, the proceeding must have been started with the presentation of a plaint But suits in forma pauperis are not commenced with a plaint. The mere fact that an application under Order 33, Rule 2 is required to embody particulars prescribed in Rule 1, of Order 7 would not 'ex prpprio vigore render the application a plaint.

Where the application to sue as a pauper has never been granted Order 7. Rule 11 does not apply and for tha matter of that no order comes into existence which can be deemed to be in-eluded in the definition of a decree.'

At page 43, in para 7, after referring to Order 7, Rule 11 and Rule 2 of Order 33, the following observations have been made:--

'It is only when the application survives the ordeal of rejection and refusal Under Rules 5 and 7 of Order 33 and is granted, it becomes a plaint in the suit tinder Rule 8 and it proceeds in all other respects as a suit instituted in the ordinary manner except that the plaint shall not be liable to any Court-fee (other than fees payable for service of process) in respect of any petition, appointment of pleader or other proceeding connected With the suit. .....

Young. C. J. who delivered the judgment of the Court repelled the contention and held that in the first place Order 7, Rule 1! does not apply to an application for permission to sue in 'forma pauperis'. Such an application is specifically dealt with by Order 33. Rule 8. This provision of the Civil Procedure Code makes it clear that an application for permission to sue in 'forma pauperis' is only deemed to be a plaint in the suit when the application is granted.

The application in the present case has never been granted and therefore. Order 7, Rule 11 did not apply and for the matter of that no order came into existence which could be deemed to be in-eluded in the definition of decree.'

This decision in my opinion, does not touch the important question that is involved in the present revision petition as to when it could be said that the suit has been instituted when an application is filed by a pauper to allow him to file a suit in forma pauperis.

23. In the case of Periyasami Padayachi v. Ulaganathan, AIR 1949 Mad 162, a single Judge of the Madras High Court has made the following instructive observations after reviewing several authorities:--

'An application under Order 33, Rule 1, is a composite document consisting of a plaint and an application for being excused from the payment of Court-fee.

When such a petition is presented and objection as to the pecuniary jurisdiction is raised in limine, it is the duty of the Court to go into that question. It is the Imperative duty of a Court when a preliminary objection as to jurisdiction is taken to decide that question at the earliest stage of the trial as a determination of that question is preliminary 1o his authority to entertain the matter or to make any further enquiry into it.'

After reviewing the authorities, in para 3, at pages 164 and 165, the following observations have been made:--

'Having regard to the decisions discussed above, the conclusions that emerge are these: An application for leave to sue in forma pauperis embodies a plaint and is for all practical purposes to be treated as a plaint, because if the application is allowed the suit is deemed to have been filed on the date when the application was presented: interlocutory reliefs can be granted as if it were a plaint and as if the parties to the application were parties to a suit. No doubt, there is no express provision in Order 33 for the return of an application made thereunder for presentation to the proper Court in a case where the Court found that it had no jurisdiction to entertain it But firstly, there is Section 141 of the Code which provides that the procedure in regard to suits should be followed as far as it can be made applicable in all proceedings in any Court having civil jurisdiction. Secondly there is the fact that the expression in the old clause, viz.. 'right to sue in such Court' which was sought to be extensively broadened by the expression 'cause of action' in the present rule permitted questions of jurisdiction to be gone into even at the application stage. A fortiori under the new rule the Court should have the power and hence the duty to go into those questions as the purpose of the amendment was not to curtail the scope of the rule. Thirdly, even if there had been no express provision in the Code, it must be laid down as a fundamental principle of justice that every Court trying civil causes has inherent jurisdiction to take cognizance of questions which cut at the root of the subject-matter of controversy between the parties and a question as to the territorial or pecuniary jurisdiction of a Court to entertain a matter is a question which cuts at the root of the subject-matter of controversy.'

24. Bhandari C. J., a single Judge of the Punjab High Court, in the case of M/s. Prem Singh v. Sat Ram Das, AIR 1958 Punjab 52, has observed as under:--

'It is not correct to say that the provisions of Rule 10 of Order 7 apply only to plaints and an application under Order 33, Rule 1 cannot be regarded as a plaint until and unless it ripens into one on the application being granted; for by virtue of Section 141 an application under Order 33, Rule 1 is in fact a plaint coupled with a prayer to be allowed to sue without payment of the required Court-fee. Therefore, subject to the provisions of Order 33, Rule 5, it is within the competence of the Court to whom an application to sue in forma pauperis is presented, to determine the preliminary question of jurisdiction.'

It is significant to note that in that case of the Punjab High Court, it was urged that the Court has no power to return the application for presentation to the proper Court for the provisions of Rule 10 of Order 7 apply only to plaints and an application under Order 33, Rule 1 cannot be regarded as a plaint until and unless it ripens into one on the application being granted, The decision of the Patna High Court, AIR (1938 Patna 209 was relied upon,

25. In the case of Chidambaram v. Nataraja, AIR 1939 Mad 80, Gentle J. has observed as under:--

'On the presentation of the petition to sue as a pauper, the suit is to be deemed to have been instituted, and, therefore there must be parties, the parties being those persons cited in the copy of the plaint filed with the petition. Hence where an application for appointment of Commissioner is made after the filing of a petition for leave to sue in forma paii-peris and before leave has been granted as prayed for in that petition, the applicant is entitled to the relief of appointment of Commissioner.'

It is significant to note that an argument was advanced before Gentle J., that the petitioners in that case were not entitled to relief of appointment of Commissioner inasmuch as no suit was in existence unless and until the petition to be admitted as a pauper was granted. That contention was negatived,

26. A Division Bench of the Bombay High Court, in the case of Totaram v. Dattu, AIR 1943 Bom 143, has made the following instructive observations:--

'The filing of the application in the form of a plaint asking permission to sue in forma pauperis which is taken on the file as a plaint, commences the suit. It would be a strange thing if a plaintiff who desires leave to sue as a pauper, cannot apply to prevent the defendant from making away with the property in suit until his application for, leave has been disposed of.'

At page 144, the following observations Have been made which are material for our purposes:--

'The first point taken is that the learned Judge had no power to make any order under Order 39, Rule 7, because there was no suit in existence. The argument is that until the plaintiffs' application for leave to sue in forma pauperia had been disposed of, no suit had come into existence. That argument is based on the terms of Order 33. Section 26* Civil Procedure Code, provides that every suit shall be instituted by the presentation of a plaint, and under Order 33 Rule 1, any suit may be instituted by a pauper. Rule 2 provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits and Rule 2 provides that where the application is granted, it shall be numbered and registered, and shall be deemed the plaint to the suit.

The plaintiff in this case presented a plaint which was taken on the file, and which contained a petition for leave to sue as a pauper. It seems to me that that plaint institutes the suit, whether the application to sue as a pauper is subsequently granted or not. The plaintiffs may subsequently elect not to proceed with their application, or their application may fail. In either of those events it seems to me that the suit has been properly instituted by the plaint, and it will be proceeded with on that plaint in the ordinary course on the plaintiffs paying the Court-fees. In practice a plaintiff is usually given further time to pay Court-fees after his application to sue as a pauper has failed. If the application succeeds, then, no doubt, the petition is to be deemed to be the plaint, but Rule 8 does not provide that it is the plaint. I entertain no doubt myself that the plaint, whether it consists of the original plaint, or of the petition deemed to be a plaint, takes effect from the date when the plaint and the petition were presented. That has recently been held to be the correct view of the matter by Gentle J., of the Madras High Court in ILR (1938) Mad 1060, equivalent to AIR a939 Mad 80.'

In my opinion, this decision lays down the correct ratio. I respectfully agree with. it and I am also bound by it, it being a decision of the Bombay High Court given prior to the bifurcation of the Bombay State,

27. In the case of Channulal v. Shama, AIR .1955 Nag 259, a Division Bench of the Nagpur High Court has made the following material observations. Hidayatullah C. J. (as he then was), speaking for the Division Bench, has made the following material observations:--

'A suit commences for the purposes of Order 33, Rule 1 read with Section 26 Civil Procedure Code with the making of an application for permission to sue in forma pauperis. In other words it can be held that from the moment of presentation of that application there is a plaint plus an application for permission to sue in forma pauperis. While the enquiry into pauperism is continuing there is nothing in Order 33 which inhibits the Court from granting an injunction.'

After referring to several authorities,: the following observations are made at page 261 which can be referred to, with advantage at this stage:--

'Under Section 26 read with Order 4 a suit is commenced by a plaint. Under Section 26 of the Code the suit may be commenced by a plaint or in such other manner as may be prescribed. It is not necessary that all the prescribed rules should be found in one place. Reliance was placed on Order 4, but apparently that Order has no relevance to a suit commenced by a pauper. The provisions for suits by paupers are contained in Order 33.

Under Order 33 'a suit' can be commenced by a pauper, and there is an Explanation which says who the pauper is It is, however, stated in the Order that though the application for permission to sue in 'forma pauperis' shall contain all the particulars required in regard to plaints, it shall be deemed to be a plaint only if the question of pauperism is held in favour of the pauper. This does not mean that there is only an application, till the pauperism is established and there is really no plaint.

It only means that action on the plaint as such cannot be taken till the pauperism is established. As we read the Order, we are of opinion that in pauper suits, as their Lordships pointed out, there is a plaint plus an application for permission to sue as a pauper, that is to say, a plaint without the necessary Court-fee and an inquiry has to be made if the Court-fee cannot be paid. Once that is assumed and accepted, the rest is clear. There is a suit pending though it is kept in abeyance till the question of pauperism is decided.

Now let us see how this is worked out. Under Rule 5, if the application does not disclose a cause of action, it can be rejected. If the conditions required by Rule 5 are fulfilled, but the applicant is found, not to be a pauper, then the rejection of 'the plaint' takes place. The provisions of the Order are that the pauper may institute another suit by presenting a plaint duly stamped, subject to the law of limitation for the time being in force. This provision is on a par with that under which a plaint improperly or insufficiently stamped is rejected under Order 7, Rule 11.

In our opinion, the purport of Order 33 is to enable a pauper to bring a suit without payment of court-fee, subject to his establishing that he is a pauper. If he succeeds in establishing that he is a pauper, he is to be allowed to continue the suit, with the application deemed to be a plaint presented on the date on which the application was made. If he fails to establish his pauperism, he is relegated to the same position in which any ordinary litigant would be if he brought his suit on a plaint insufficiently stamped.

It follows that during the time the pauperism is being enquired into, there is a plaint but insufficiently stamped. When the pauperism is established it is a plaint but without any such defect. This is in effect the ruling of their Lordships of the Privy Council, and we do not see any reason to depart from the observations made in view of the changes of a minor character introduced in the Code. In fact, having read the three Codes in comparison with one another, we are of opinion that the ruling still holds good as an interpretation of Order 33.'

The aforesaid decision of the Bombay High Court has been followed by the Division Bench of the Nagpur High Court in this decision. The decision in : AIR1950Pat309 was relied upon before the Nagpur High Court by the other side.

28. At page 262 in that regard, the following observations have been made:--

'With all due respect to the Division Bench we do not find ourselves in agreement. The question of jurisdiction is bound up with other matters besides the Code. Under the Courts Acts which are prevalent in all States, some Courts have jurisdiction to try suits only upto a particular value. In our opinion, it would lead to endless confusion if even in a case, which on its face is beyond the pecuniary jurisdiction of the Court, the question of pauperism has to be decided and the plaint or application not returned for presentation to the proper Court. The effect of ruling is brought into relief If we take an example stronger than this.

Suppose a suit which can only be instituted in Bombay is brought in this State by a pauper, and the question of pauperism has to be gone into. What useful purpose the enquiry into pauperism will serve is not quite clear. After all. the decision into the pauperism of the man hi this Court will not be binding upon the Court which will eventually try the suit in Bombay. To say that the initial jurisdiction of the Court cannot even be examined because the suit itself has not commenced is, in our opinion, erroneous because -- with all due respect -- 'it is assumed that Order 33 exhaustively provides for all matters connected with pauper suits'.'

These underlined (here in ' ') observations, in my opinion, are correct observations, Order 33 does not exhaustively provide for all matters connected with pauper suits.

28a. In para 21, the observations made are:

'In our opinion, the reasoning of Beaumont C. J. (with all due respect) is not only in consonance with common sense but also with the Code, which implies that there is a plaint, though in an inchoate state. Since our view of the matter is in accordance with what the learned Chief Justice in the Bombay case has stated, we do not propose to deal exhaustively with this matter.'

29. The Supreme Court also in the case of Vijai Pratap v. Dukh Haran Nath : AIR1962SC941 , has made the following important observations:--

'An application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit by a pauper without payment of fees prescribed by the Court Fees Act If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 is presented, and Order 1, Rule 10 would be as much applicable in such a suit as in a suit in which court-fee had been duly paid. It is true that a person who claims to join a petitioner praying for leave to sue in forma pauperis must himself be a pauper.'

These observations made by the Supreme Court lend support to my conclusion that an application to sue in forma pauperis is one mode prescribed by the Code for institution of a suit by a pauper without payment of fees prescribed by the Court Fees Act. In short, it means that there is another mode prescribed by the Code for institution of a suit in case of a pauper and that is without presentation of a plaint in Its technical sense as the plaint can be filed in view of the provisions of the Court Fees Act, on payment of the Court-fees chargeable thereon. I, therefore, accept the argument advanced by the learned Advocate Mr. Vakharia for the opponent that the suit can be said to have been instituted the moment an application for permission to file a suit in forma pauperis is filed, giving the particulars as contemplated by Rule 2 of Order 33 of the Coda

30. An argument advanced by Mr. Mankad that till the application is granted there is no existence of a suit, is in my opinion, not a well founded argument. Taking into consideration the provisions of Section 141 of the Civil Procedure Code and other relevant provisions of the Code, even before the stage of granting of an application is reached, such an application filed by a pauper can be allowed to be amended. A relief can also be allowed to be deleted or withdrawn. The argument that such amendment or withdrawal cannot be permitted as there is no suit instituted till the application to permit a pauper to file a suit in forma pauperis is granted, is not a well founded argument. The reason is that the suit has been already instituted. On the application being granted, the application is to be deemed to be a plaint and it is to be numbered and registered and the suit is to be proceeded further as if the suit was instituted in an ordinary manner except in regard to the payment of Court-fees on the. plaint

31. During the progress of the judgment, the learned Advocate Mr. Vakharia invited my attention to the decision of the Full Bench of the Patna High Court in the case of Ramashrey v. Pashupati, : AIR1968Pat1 . The relevant observations are at page 3 in para 5. They are as under:--

'The main question for consideration is whether on the rejection of the pauper application on the 18th January, 1964, the Court became functus officio and whether there was nothing pending before the Court and the Court had no jurisdiction thereafter to allow the applicant to pay the necessary Court-fee and to treat the pauper application as a plaint. There is undoubtedly a sharp conflict of judicial opinion in Mt. Jinatun Nisa Bibi v. Mt. Indrakun Nisa. : AIR1950Ori183 , where in my judgment at pages, 187, 188 I have referred to three conflicting views on the subject. So far as Patna High Court is concerned the law as laid down in Lala Mistry's case, AIR 1938 Pat 120 has been followed in all subsequent decisions (see Mathura Singh's case, AIR 1954 Pat 170). This view is based on the assumption that an application for leave to sue as a pauper is neither a plaint nor a composite document including a plaint, as pointed out by Rowland, J. in Lala Mistry's case, AIR 1938 Pat 120. He had noticed the well-known Privy Council judgment in Stuart Skinner v. William Orde, (1878) 6 Ind App 126 (PC) where there are clear observations to the effect that a pauper application 'contains in itself all the particulars the statute requires in a plaint, and plus these, a prayer that the plaintiff may be allowed to sue in forma pauperis'. This observation of the Privy Council would suggest that a pauper application is in reality a composite document. Rowland, J., however, distinguished it on the ground that the facts in the Privy Council case were different. Some of the other High Courts have taken the view that a 'pauper application is a composite document, and merely because leave to appeal in forma pauperis is rejected the court does not become functus officio, and it can be treated as a plaint on payment of necessary Court-fee .....'

31a. It is not necessary to further discuss the relative merits of the various conflicting views on the subject, because their Lordships of the Supreme Court in Vijai Pratap Singh's case : AIR1962SC941 have settled the matter beyond controversy. To quote their Lordships (paragraph 13); 'An application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court-fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented.' These observations show that the view taken by the Patna High Court based on the aforesaid decisions that a pauper application is not a composite document including a plaint cannot (speaking with great respect) be taken as correct.

It thus appears that the Patna High Court has also ultimately taken a view which lends support to the conclusion reached by me. I, therefore, reject the first submission made by the learned Advocate Mr. Mankad and hold that the Court below had power to allow such amendment of the application or to allow withdrawal of relief regarding charge at this stage, i.e. the stage before reaching the stage of granting a pauper application,

32. Coming to the next submission made by Mr. Mankad, it appears that his argument that the Court had no jurisdiction to permit the amendment of the plaint, where initially it had no jurisdiction, but as a result of amendment it gets jurisdiction, is an argument advanced on a certain assumption made. The 'instant case is not a case where the Court had no jurisdiction to entertain the suit in question. The Court had merely no power to grant one of the reliefs namely, the relief regarding keeping of a charge over the immoveable and move-able properties, the reason being that those properties are situated outside the jurisdiction of the trial Court. So far as the personal claim is concerned, namely, for the amounts claimed for the arrears of maintenance as well as for future maintenance, the Court had jurisdiction to grant the relief against the person of the present applicant-defendant. It is not a case where the suit amount was beyond the pecuniary jurisdiction of the Court If the subject-matter of the suit was beyond the pecuniary jurisdiction of the Court, the Court cannot allow the amendment of a plaint so as to reduce the claim and to bring it within its jurisdiction. The obvious reason is that the Court had initially no jurisdiction to entertain that suit and eventually it cannot have jurisdiction to allow the amendment to reduce its claim so as to bring it within its jurisdiction. In such an event, the proper course that could be adopted would be to return the plaint for presentation to the proper Court The party, if it so chooses, can amend the plaint by reducing the claim so as to bring it within the jurisdiction of that particular Court and re-present that plaint

33. The learned Advocate Mr. Mankad invited my attention to the case of Sitabai v. Laxmibai, AIR 1916 Bom 272. The relevant observations made therein are as under:--

'The question is whether this suit can rightly be held to fall within the scope of Section 16(d), Civil Procedure Code, The learned Judge has held that it does not. The suit is by the mother of the deceased husband of defendant 1 against that defendant and her father. Both the defendants live in a Native State, and, therefore, in respect of personal claims they will not be liable to the jurisdiction of the Court unless the suit falls within Section 16. The suit is for a declaration that the plaintiff is entitled to a maintenance allowance of a certain amount for her life against defendant 1 and for residence and pilgrimage expenses and other claims and also for stridhan property, and one of the objects of the suit, which is set out in the prayer is that the liability to pay the sums claimed should be made a charge on defendant 1's land in the Inam village in the Bhimthadi Taluka of the Poona District, and on her share also in the said village. Defendant 1 is sued as the person to whom the family estate has come upon death of her husband, whose mother is the plaintiff Sitabai. On the plaint as framed, the question which has to be decided before the Court will be enabled to pass a decree, is whether or not the plaintiff is entitled to a right to or interest in immoveable property in the Bhimthadi taluka, by way of charge as security for the maintenance which may be decreed. That being the question to be determined, it is a question directly within the terms of Section 16(d), Civil Procedure Code. We, therefore, think that the learned Judge was in error. We must set aside his order and direct that the suit do proceed against defendant 1 but we think that the Court had no jurisdiction against defendant 2.'

It is significant to note that both the defendants were living in a Native State and, therefore, in respect of personal claims they were not liable to the jurisdiction of the Court. The suit could not be entertained unless the suit fell within Section 16. In that case also the Court did direct that the suit do proceed against defendant No. 1. That decision does not help us in deciding the question that arises for consideration in this revision petition.

34. In the case of Mutyalamma V. Narayanaswamy AIR 1949 Mad 719, Mack J., has observed:--

'in a suit for possession of land, the value of the suit property must first be ascertained in accordance with the provisions of Section 7(v), Court-fees Act, and if this is found to be in excess of the Court's Jurisdiction, it should at once return the plaint for presentation to the proper Court It is ordinarily not open to the Court, though there may be some exceptional circumstances which may justify this course, to allow an amendment of any plaint which may help to bring doubtful plaint really within the Jurisdiction of a higher Court within its own jurisdiction. It is ordinarily its duty to decide its own jurisdiction to try the original plaint filed before him.'

That decision also turns upon the pecuniary jurisdiction of the Court and hence has no application to the facts of the present case.

35. In the case of H. C. Khan v. Purni Agarwallani, AIR 1953 Assam 102, Ram Labhaya J. has observed:

'Where a Court which has no jurisdiction to entertain a suit permits the plaintiff to amend the plaint by reducing his claim and to withdraw the claim with leave to institute a fresh suit, the order is covered by Order 23, Rule 1 and amounts to exercising jurisdiction in suit which he has no jurisdiction to hear and consequently without jurisdiction.'

36. In the case of Tirkha v. Ghasi Ram : AIR1935All842 , Kendall J., has observed:--

'A Court has no right to direct the amendment of a plaint when it has no jurisdiction over the subject-matter of the plaint. Hence where a suit is filed in a Court for a sum beyond the jurisdiction of the Court, the Court has no right to allow amendment of the plaint reducing the amount claimed so as to bring it within the pecuniary jurisdiction of the Court.'

37. All these cases cited by the learned Advocate Mr. Mankad, therefore, were cases regarding the subject-matter of the suit beyond the pecuniary jurisdiction of the Court and hence it was held that the Court had no jurisdiction to allow the amendment of the plaint so as to reduce the claim and to bring the suit within its jurisdiction. The instant case is a case where the subject-matter of the suit was within the pecuniary jurisdiction of the Court below. The Court had jurisdiction to grant the relief against the person of the present petitioner. It had only no jurisdiction to grant the relief of keeping a charge over the 1m-moveable and moveable properties of the present petitioner, the reason being that the properties are situated outside the territorial jurisdiction of the Court below. The Court had, therefore, jurisdiction to permit the amendment of the plaint or to permit the withdrawal of one of the reliefs. I, therefore, reject the second contention raised on behalf of the petitioner.

38. As all the contentions raised fail, the revision petition fails.

39. Revision petition is dismissed withcosts. Rule is discharged.


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