Basheer Ahmed Sayeed, J.
1. The points that arise in this civil revision petn. are ; (1) That the pauper application has not been pcoperly presented ; & (2) that there is no averment in the proposed plaint that the petnr. was willing & ready to tender the money to re-purchase the property. Both the pointa have been considered by the learned Subordinate Judge & overlooking the objections he has granted leave to the pauper to present his petn. in in forma pauperis & directed that the petn. should be registered as a suit.
2. Counsel for the petnr. before me contends that the learned Subordinate Judge was not right in having overlooked the mandatory provisions of Order 33, Rule 3, C. P. C., which says that notwithstanding anything contained in these rules, the appln. shall be presented to the Ct. by the appct. in person, unless he is exempted from appearing in Ct., in which case the appln. may ba presented by an authorised agent who can answer all material questions relating to the appln. & who may be examined in the same manner as the party represented by him might have been examined had such party attended in person. It is common ground that the pauper in this petn. is (sic) been exempted either by the State Govt. or by the H. C. which is empowered to grant exemption under Sub-clause (2) of Rule 3 of Order 33, C.P.C., which reads as follows :
'The H. C. may by general or special order exemptany person or class of persons from the obligation to present in person an appln. for permission to sue as a pauper.'
What happened in this case was that the pauper presented his appln. not in person but by some other person said to have been his agent. That agent did not produce any power of attorney authorising him to present the petn. When this defect was pointed out this was sought to be rectified by a power of attorney appln. which was produced after the presentation of the pauper petn. When the further question was raised as to whether the pauper who was presenting the petn. through his authorised agent was a person exempted under Section 103 or under Rule 3 of Order 33, C. P. C., this was again sought to be rectified by a petn. presented considerably later on by the pauper applying to the Ct. for being granted exemption & the Ct. is purported to have granted such exemption post facto. The question arises as to whether under Section 133, or under Order 33, Rule 3, C. P. C., the sub-Ct. has any power to grant any such exemption from appearance in Gt. to any party. A reading of Section 133 & Order 33, Rule 3, C. P. C., makes it clear that neither the Dist. Munsif's Ct., nor the Sub-Ct , nor the Dist. Ct. are empowered to grant such exemptions. The power to exempt under Section 133, C. P. C., vests in theState Govt. & the present pauper is not one of those in the lists notified by the Govt. That the Subordinate Cts. do not have the power to grant such exemptions is evident from the farther clause that has been added by Madras Amendment to Rule 3 of Order 33, C. P. C., which empowers the H. C. alone to exercise such power of exemption. It mast, therefore, be held that the Sub-Ct. which granted the exemption from personal appearance to the pauper had no authority & no power to do so. It has not been brought to my notice that at any time the H. C. had delegated such power fee the Sub-Ct. or any Dist. Ct. for granting any such exemptions. It is not free from doabt as to whether the H. C. itself has the power under the existing rule to delegate the authority vested in it by the Madras Amendment to Order 33, Rule 3, C. P. C. Such being the case, the Sub-Ct. must be held to have assumed power which did not vest in it to grant any exemption. It follows that the exemption, therefore, cannot be valid. Thia objection by itself must be considered to be fatal to the admission of the pauper petn. The rule, no doubt, works a serious hardship to paupers as it stands. But until the rule is amended giving the power to the Subordinate Cts. also to exempt parties from personal apperance in presenting pauper petns., the position is & may continue to be as I have set oat above.
3. Even granting that the Ct. was right in having exempted the pauper from appearing in Gt. on his appln. for such exemption, the point still arises as to whether the pauper has complied with the requirement of law that when he sues for specific performance of a contract he should aver & prove his continuous readiness & willingness, from the date of the contract to the time of the hearing of the suit, to perform the contract. In the petn. presented by him there is actually no such averment. Far from that, the very fact that he is proposing to sue as a pauper precludes him from making any such averment & even if any such averment is to be made in a pauper petn., it will by itself be a ground to dispauper the appct., & consequently there can be no substance in any such averment. In Ardeshir H. Mama, v. Flora Sassoon, 52 Bom. 597 : A.I.R. 1928 P. C. 208, the Judicial Committee has specifically laid down the principle of law that is to govern such cases where specific performance of contracts is claimed. This casecomes within the scope of that decision & in view of of that decision, & in the absence of any averment & any capacity on the part of the paaper to tender the purchase price, I cannot but hold that the pauper petn. cannot be admitted.
4. From the facts that have been placed before me, viz., that the father-in-law, i. e. the present pauper, sold his properties to his son-in-law, now deceased, in 1932 & 1942, respectively, & that the properties were conveyed by the said son-in-law to a third party on 15-3-1946, that this pauper petn. itself was presented only on 21-4-1948, that the appln. to exempt the petnr. from personal appearance & a fresh petn. to cure the various defects in the earlier representation of the petn. were presented as late as 12-3-1949, that even the notice by the pauper to his son-in-law & to the purchaser from the son-in-law, was given on 21-3-1946, & the further fact that the contract which is now relied upon by the pauper was only an oral agreement which is not supported by any written contract as such, it is clear that the proposed suit by the pauper is wholly speculative & is not bona fide. I feel the very cause of action for the proposed suit is a matter of great doubt. In these circumstances, I cannot hold that the learned Subordinate Judge has acted rightly in having allowed the pauper petn. to be registered as a suit. This petn. is, therefore, allowed with costs throughout.
5. The pauper will have two months' time from this date to pay the court-fee, if he still proposes to pursue the matter in Ct.