Amiya Kumar Mookerji, J.
1. This Rule was obtained by the defendants and it is directed against an order of the learned Chief Judge, Small Causes Court, Calcutta, allowing the plaintiff-opposite party's application praying for permission to sue as a pauper under Section 74 of the Provincial Small Cause Courts Act and Rule 1 of Order 33 of the Small Causes Court's Manual.
2. The plaintiff took a tenancy from the defendants of one Almirah shop on the road side window of the northern wall of the premises No. 53, Gray Street, Calcutta, under an agreement dated 27-9-63 at a rent of Rs. 45/- per month according to English Calendar. The plaintiff used to do repairing works of fountain pens, spectacles and cigarette lighters etc. In the month of February, 1966, the plaintiff left for Varanashi for meeting his relations there, keeping the shop under Jock and key with the articles of his business of the value of Rs. 400/-. On coming back to Calcutta on 3-4-66, he found that the Almirah shop was removed with the Almirah and the articles contained therein. The shop space had been converted into a room. Thereafter the matter was taken up by the police, goods valued Rs. 387/- were recovered from the possession of the defendants but the rest of the goods could not be traced. A criminal case was started against the petitioner No. 2, the son of the petitioner No. 1, who was found guilty of charges under Sections 454/380, Indian Penal Code and sentenced to a fine of Rs. 100/- by a Magistrate on 26-12-66. The cause of action of the suit arose on 26-2-66 when conversion of the plaintiff's goods by the petitioners was established by the judgment of the Criminal Court. The plaintiff brought the suit against the defendants for recovery of Rs. 3613/- but on account of his poor circumstances he was unable to pay court-fees amounting to Rs. 315/- payable on the value of the suit. Besides the property in suit, the plaintiff did not possess any movable and immovable assets except some implements for his business and wearing clothes of the estimated value of Rs. 80/-. The petitioners resisted the plaintiff opposite party's said application by filing objection. They also asked particulars of the self-acquired and joint property of the plaintiff at his native village. Thereupon, the plaintiff filed an affidavit stating that he had no property either joint or self-acquired at his native village. The learned Chief Judge, Small Causes Court at Calcutta, allowed the plaintiff-opposite party's application under Section 74 of the Presidency Small Cause Courts Act and permitted him to sue as a 'pauper'. The defendants being aggrieved against the said order, moved this Court and obtained the present Rule.
3. Mr. Mitter, appearing on behalf of the petitioners, in support of the Rule, contended that the learned Judge acted illegally and with material irregularity in exercise of his jurisdiction in allowing the opposite party's application praying for permission to sue as a 'pauper', ignoring the plaintiff's own statement that he had recovered possession of articles worth Rupees 387/-. Under the provisions of Order 33,Rule 1, Civil Procedure Code, a person is a 'pauper' when he is not entitled to property worth Rs. 100/-. Mr. Mitter further contended that the word 'pauper' as used in Section 74 of the Presidency Small Cause Courts Act has the same meaning as defined in Order 33, Rule 1, Civil Procedure Code, inasmuch as in the 5th Schedule added to the Presidency Small Cause Courts Act by Bengal Act VIII of 1934, the word 'pauper' is used. In support of his contentions Mr. Mitter referred to a decision of the Supreme Court, N. B. Jeejeebhoy v. Asst. Collector, Thana, reported in : 1SCR636 .
4. Civil Courts in West Bengal are constituted under the Bengal, Agra and Assam Civil Courts Act. But the Court of the Small Causes at Calcutta is constituted under Presidency Small Cause Courts Act The said Act is a special Act and it prescribes a special form of procedure as laid down in the Act. Section 4 of the Civil Procedure Code saves the special form of procedure prescribed by or under any other law for the time being in force. Section 8 of the Civil Procedure Code provides that, except the provisions mentioned in it, the body of the Code shall not apply to suits and proceedings in Presidency Small Causes Court. Section 9 of the Presidency Small Cause Courts Act provides that the High Court may prescribe procedure and practice of such courts: Proviso to Section 8 of the Civil Procedure Code empowers the High Court to extend the provisions of the Court, not inconsistent with the express provisions of the Presidency Small Cause Courts Act to suits or proceedings in such courts. The High Court has prescribed such rules. Relevant Rules are to be found in Chapter XXXIII of the Manual of the Court of Small Causes. The provisions of Rules 10 and 14 of Order 33 of Civil Procedure Code have been extended to Small Causes Court, Calcutta. But the provisions of Order 33, Rule 1 have been omitted. Therefore Order 33, Rule 1 of the Code will not apply to the Small Causes Court, because Chapter XXXIII of the Rules on practice and procedure does not include a Rule similar to Order 33, Rule 1, Civil Procedure Code, even assuming that the word 'pauper' in Section 74 of the Presidency Small Cause Courts Act is conterminous with the word 'pauper' as defined in Order 33, Rule 1, Civil Procedure Code. The decision of the Supreme Court as referred to by Mr. Mitter has no relevancy to the facts and circumstances of the instant case. In that case, the Supreme Court held that the expression 'compensation' in Section 299 of the Government of India Act, 1935, is similar to that of Article 31(12) of the Constitution, the wording in the last para of Section 299, was bodily lifted and introduced in Article 31(2) of the Constitution. Therefore, it is reasonable to assume that at any rate when the Constitution was originally framed, the intention was not togive a different meaning to the said wording. But in the present case as I have said already that the provisions of the Code of Civil Procedure are extended only under the proviso (1) to Section 8 of the Civil Procedure Code to the Presidency Small Causes Court at Calcutta.
5. Accordingly, I hold that in deciding an application under Section 74 and Chapter 33, Rule 1 of the City Civil Court Manual, it is not required by the Small Causes Court to determine whether a person is a 'pauper' or not within the meaning of Order 33, Rule 1, Civil Procedure Code, as the provisions have got no application in Small Causes Court at Calcutta. So the first point of Mr. Mitter fails.
6. Mr. Mitter next contended that under Sub-rule (1) of Rule 3 in Chapter XXXIII of the City Civil Court Manual, the learned Judge is required to examine the merits of the claim of the application. In the instant case the claim of the plaintiff is barred by limitation. So the learned Judge has illegally exercised his jurisdiction in allowing the opposite party to sue as 'pauper'.
7. In the instant case no written statement has been filed, so the point of limitation cannot be gone into at this stage. The petitioner also in their objections did not state that the plaintiff's suit was barred by limitation. So, there is no substance in the second contention of Mr. Mitter.
8. In the result, this Rule is discharged with costs, hearing fee being assessed at 2 gold mohurs. Let the records go down to the Court below as expeditiously as possible.