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Madan Mohan Lal Kapani Vs. Jhalman Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1759 of 1952
Judge
Reported inAIR1954Cal89,57CWN848
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rules 2 and 5
AppellantMadan Mohan Lal Kapani
RespondentJhalman Singh and ors.
Appellant AdvocateBejoy Bhose, Adv.
Respondent AdvocateKshitish Chandra Basu, Adv.
Cases ReferredSm. Bagala Sundari Devi v. Rivers Steam Navigation Co. Ltd.
Excerpt:
- .....advocate contends that what the learned judge did in the present cases was not to return the pauper application for refiling it after proper verification but what he did was to allow the petitioner to sign and verify the petition as it stood. so far as this point is concerned, where, as in the present case, no question of limitation is involved, it appears that what the learned judge did was in substantial compliance with the oudh. case. so far as the first case is concerned the case before us can be distinguished in view of certain circumstances. though the original pauper petition had not been signed and verified as required under rule 3, the plaint annexed to it was signed and verified in the usual manner. it appears that the petitioner wanted the relevant portion of the plaint.....
Judgment:

Guha, J.

1. This is an application under Section 115, C. P. C. by the petitioner directed against an order passed by the Subordinate Judge, 1st Court, Alipore, on 31-5-52 rejecting the application filed by him to sue In forma pauperis. The learned Judge rejected the application holding that the petitioner had not succeeded in satisfying the Court that he was a pauper within the meaning of Order 33, C. P. C.

2. The matter has been argued before us at some length both on the point whether the petitioner is a pauper as also on the point whether the application filed by him before the lower Court under Order 33, Rule 1, C. P. C. complied with the provisions of law. It appears that the petition with which the plaint was annexed was not signed and verified in the manner laid down by law as required, under Order 33, Rule 2, C. P. C. On this account a preliminary objection was raised in the lower Court, by the opposite party who contended that the application to sue in forma pauperis was not maintainable as the pauper petition itself had not been signed and verified. The learned Judge, however, by his order dated 26-4-52 overruled the objection and allowed the petitioner, for the ends of justice, to sign and verify the petition in the manner provided in Order 33. The petition was, thereupon, signed and verified by the petitioner on 24-5-52.

3. It has been contended before us by the opposite party that the order passed by the learned Judge on 26-4-52 allowing the petitioner an opportunity to sign and verify the pauper petition was illegal and as the pauper petition had not been signed and verified initially that was a fatal objection to the maintainability of the petition itself by reason of the provisions contained in Rule 5, Order 33. In support of this contention the learned Advocate for the opposite party has drawn our attention to two cases viz., the case of --'Narsiah v. Vithalingam Thingandas', decided by the Lower Burma Chief Court and reported in --16 Ind Cas 83 (Low Bur) (A)', where it has been held that Rule 5 of Order 33 leaves the Court no option where an application for leave to sue as a pauper is defective and where the verification of the statement is not in accordance with, the rule for verification of pleadings as stated in Order 6, Rule 15 the Court is bound to reject the application.

The second case to which our attention has been drawn is the case of -- 'Mt. Umrao Jahan Begam v. Hakimunnissa' AIR 1942 Oudh 169 (B), where it has been observed inter alia that if the application was not framed and presented in a manner described by Rules 2 and 3 of Order 33, the Court could have rejected the application under Rule 5 (a) of Order 33 and that such an order could not create a bar in the way of the applicant presenting a fresh application after complying: with the requirements of Rules 2 and 3 of Order 33. It was also observed in that case that it was also open to the Court to have returned the application to the applicant and to call upon him to supply the defects and omissions and make it conformable to the requirements of Rules 2 and 3.

4. Relying upon the second ruling the learned Advocate contends that what the learned Judge did in the present cases was not to return the pauper application for refiling it after proper verification but what he did was to allow the petitioner to sign and verify the petition as it stood. So far as this point is concerned, where, as in the present case, no question of limitation is involved, it appears that what the learned Judge did was in substantial compliance with the Oudh. case. So far as the first case is concerned the case before us can be distinguished in view of certain circumstances. Though the original pauper petition had not been signed and verified as required under Rule 3, the plaint annexed to it was signed and verified in the usual manner. It appears that the petitioner wanted the relevant portion of the plaint to be considered as a part of the petition. In these circumstances the cases cited by the learned Advocate for the opposite party do not, in our opinion, stand in the way of giving such relief to the petitioner which we consider appropriate. All the more so, in view of the principles laid down in the Bench decision of this Court in the case of -- 'Sm. Bagala Sundari Devi v. Rivers Steam Navigation Co. Ltd.' : AIR1934Cal640 .

5. It may be mentioned incidentally that though this order was passed on 26-4-52 by the learned Judge in favour of the petitioner, the opposite party did not choose to come up against it at the appropriate time. Apart from that aspect of the matter, however, we are of opinion that the order passed by the learned Judge on that occasion cannot be allowed to be assailed by line opposite party in view of the grounds set forth above.

6. The next point that has been canvassed before us is whether even after the verification of the pauper application made on 24-5-52 in purported compliance with the order of the Court passed on 26-4-52, the petition can still be held to be in conformity with the mandatory provisions contained in Order 33, Rule 2. Rule 2 requires that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable 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. The learned Court below has observed that the petitioner has considerable landed properties in West Punjab but he has not given in the Schedule the list of such immovable properties.

7. It is contended on behalf of the opposite party that this was a fatal defect which, stood in the way of the petitioner and his prayer to be allowed to sue 'in forma pauperis' ought to have been rejected on that ground alone. It is contended on behalf of the petitioner that he is a pauper within the meaning of Rule 1 inasmuch as he is not possessed of sufficient means to enable him to pay the requisite court-fees. As regards the Punjab properties it is contended that he is no longer in possession of the same, that he was compelled to migrate to India from West Punjab on the partition of India in 1947, and that the houses at Lahore worth about two lakhs of rupees which are the only immovable property in which he had any interest before he migrated to India were burnt to ashes and that in any case whatever may be the remnant of property in West Punjab in which he might be interested had vested in the Custodian of Evacuee property and as such he was not required to make any mention of such property in the pauper application.

Rule 2 or Order 33 mentions, however, that the pauper application shall contain a schedule of any immovable property belonging to the applicant. The applicant does not say categorically that he has lost all title to such property. Whatever that may be, in order to make the pauper application strictly conformable to the provisions of Rule 2, it was necessary for the petitioner to mention in the schedule to the application not only his movable properties but also the Lahore properties with such remarks as he might consider necessary. It is true that in para 9 of the plaint there was some reference to the Lahore properties but sufficient particulars with regard to those proper-ties were not there nor was any schedule attach-ed to the plaint. In these circumstances it cannot be said that the pauper application had strictly complied with the requirements of Rule 2; Order 33.

It has been strongly urged on behalf of the opposite party that by reason of this defect Rule 5 of Order 33 which lays down that the Court shall reject an application for permission to sue as a pauper where it is not framed and presented to the manner prescribed by Rule 2, must come into play and the pauper application dismissed on that ground. Considering all the circumstances however, we are not prepared to go to that extent. In -- ' : AIR1934Cal640 ', referred to before, it was laid down by a Bench of this Court that where an application for permission to sue as a pauper is otherwise in order, mere omission to include therein an item of property is not a non-compliance with the provisions of Order 33, Rule 2, Order P. C. which must entail the rejection of the application under Rule 5 (a). It was further laid down in that case that an application for amendment so as to include the omitted items of property would therefore lie.

8. Considering all the circumstances we are of opinion that substantial justice would be done in the present case in revision if we allow the petitioner an opportunity to amend his pauper application suitably in regard to the Lahore properties and thus bring it in conformity with Rule 2.

9. The case should on this account go back on remand to the lower Court in order to enable the petitioner to take suitable steps in the matter.

10. As regards the merits of the case viz., as to whether the petitioner is a pauper at all within the meaning of Rule 1 of Order 33, whether he was a partner of Kapani Brothers or not, at the material time, or whether he has any subsisting interest in the Lahore properties or not, we do not express any opinion. After the case goes back on remand and if the pauper application is suitably amended in the light of the observations made above, the opposite party will be at liberty to file an additional objection petition and both the parties will be at liberty to adduce additional evidence both oral and documentary. With these observations the Rule is made absolute, the order of the learned Judge dated 24-5-52 is set aside and the case remanded.

11. In any event the opposite party will get 2 (two) gold mohurs as costs from the petitioner in this revision case.

Renupada Mukherjee, J.

12. I agree.


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