Sarjoo Prosad, C.J.
1. The defendant petitioner has moved in this case for setting aside an order of the learned District Judge, Jodhpur, Shri P. N. Shinghal, dated 10-9-1959.
2. The order relates to a suit filed by three persons Mansukhram, Sita Ram and Jassu Bharti under Section 92 of the C. P. C. An application for leave to sue in forma pauperis was also presented along with the plaint on 24-9-1954, and after due enquiries it appears that By an order dated 9-4-1935, the predecessor-in-office of the learned District Judge allowed the application for leave to sue as pauper. Thereafter the suit proceeded to trial, and after the entire evidence had been closed on 23-7-1959. and a date had been fixed for arguments, two applications were presented on behalf of the petitioner.
One was to the effect that there was no regular presentation of the application for leave to sue in forma pauperis as required by Order XXXIII, Rule 8, of the C. P. C., and the other was that a suit under Section 92 of the Code could not be instituted in forma pauperis. The learned District Judge rejected both these pleas, and he rightly commented that such pleas could not be entertained at that late stage of the suit when leave to sue had already been granted and the case had proceeded to trial, and the evidence of the parties hod been closed.
3. What happened actually was that a joint plaint had been filed on behalf of all the plaintiffs under Section 92 of the C.P.C. At the same time there was a petition for leave to sue in forma pauperis also presented on their behalf. The plaint was filed by Shri Sardar Bharti, the Advocate for the plaintiffs; and the application in forma pauperis was presented by one of the applicants, Mansukhram, on behalf of himself and the other two plaintiffs. It is therefore, contended that under Order XXXIII, Rule 3, the application for leave to sue in forma pauperis ought to have been rejected because there was no due compliance with that order.
The learned District Judge has rightly pointed out that the technical defect, if any, in presenting the plaint and the application for permission to sue as pauper was not such an irregularity as would vitiate the trial. The plaint also indicated that the plaintiffs were paupers, and not in a position to pay the court-fee required; and there was further a leave petition filed along with the plaint containing all the necessary particulars as well as the verification. It appears from the application that all these plaintiffs are Sadhus and had no properties of their own, and the court was evidently satisfied that they were paupers, and as such granted leave to sue in forma pauperis.
All that Order XXXIII, Rule 3, requires is that the application for leave to sue in forma pauperis should contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant or applicants, should bo annexed thereto, and that the application should be presented to the court by the applicant in person unless he is exempted from appearing in court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person.
Here Mansukhram had a common case with the other two plaintiffs both as to the cause of action for the suit and on the point of pauperism alleged in the petition. He was therefore competent to answer all relevant questions that could be put by the court. There is no other defect pointed out by the learned counsel for the petitioner in this leave petition except this that only Mansukhram, one of the plaintiffs in the suit, presented the application on behalf of all. It Mansukhram was capable of answering all relevant questions, I do not see why the presentation could not be deemed to be valid.
It is not that there was any different case of pauperism to be investigated by the court; nor did the court reject the application on that ground, but seemed to be satisfied about the genuineness of theallegations made in the petition, which were further confirmed on enquiry. That being so, it is too late now to challenge the validity of the presentation on the ground that it did not fully comply with the requirements of Order XXXIII, Rule 3 of the Code.
4. The learned counsel for the petitioner has referred to a decision of the Oudh judicial Commissioner's Court, in Shamimuddin v. Amir Husain, 4 Ind Cas 777 in which it has been observed that-
'Where only one out of several petitioners presents the application, in person the application must be rejected as regards those petitioners who do not join in presenting it in person'.
There it appears that an application was moved against the order granting permission to sue in formapauperis immediately after the permission had beengiven, and the learned Judge, who decided the case,was of the view that the order granting permissioncould not be sustained. It does not appear that thetrial court in that case had applied its mind to thematter. It had simply proceeded to dispose of thecase with the observation that although the plainthad been presented by one of the plaintiffs, thatWould be no ground for rejecting the applicationwhen the Others had been represented at the hearing..
It appears that the learned Judge originally directed the court below to inquire and determine whether the applicants other than Amir Hussain, or any and which of them, joined in presenting the application for leave to sue in forma pauperis, and when later it was found that actually they had not joined, then the application was dismissed. In the present case, I am not disposed to hold that there was no compliance with Order XXXIII Rule 3. I could understand a case where the fact of pauperism, if any, in the case of each applicant was different; but here they had all a common case being all Sadhus with little or no worldly possessions. Therefore in the circumstances which I have indicated earlier, the learned Judge was justified in holding that it afforded no ground for interfering with the order granting permission to sue in forma pauperis.
5. In regard to the second contention that a suit under Section 92 C. P. C. could not be filed in forma pauperis, the learned counsel for the petitioner has relied upon another decision of the Oudh Judicial Commissioners' Court in Sarabjit Bharathi v. Mt. Lagan Dei, 1,4 Ind Cas 731. This decision again is not conclusive on the point, because certain observations made by the learned Judges in that case were merely obiter. They themselves say that they did not consider it necessary to dispose of the case solely upon the point, because they were of the opinion that the array of parties in that case was from the first incomplete.
The language of Order XXXIII, Rule 1, itself is wide enough to cover even a suit under Section 92 C. P. C. If the Advocate General granted permission to the plaintiffs to sue, and if these plaintiffs had been actually found to be pauper, I do not see any reason why they cannot continue the suit under Section 92 of the Code. The case in question, therefore does not support the contention of the learned counsel for the petitioner. As I have said, the language of Order XXXIII, Rule 1, C. P. C. is wide enough to cover a case of this nature, provided the other requirements of Section 92 are fulfilled, namely thatsanction of the Advocate General had been obtained before the institution of the suit.
The Advocate General is expected to make appropriate enquiries before granting sanction and if he thought that the plaintiffs due to poverty would not prosecute the litigation, he would as well refuse to sanction such a suit; otherwise in the language of Order XXXIII, Rule 1 itself there appears to be no bar. The sanction by the Advocate General is anample safeguard. In my opinion the applications filed before the learned District Judge merely appear to have been filed to delay the disposal of the suit, which has already reached the stage of arguments. Such belated applications ought not to be encouraged. In fact the application for revision should have been dismissed on this ground alone.
6. I accordingly reject this application withcosts, hearing fee Rs. 50/-. One of the oppositeparties Mansukhram appeared to oppose the application in person; but I did not consider it necessaryto hear him.