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Nirmal Kumar Mitra Vs. Monoranjan Chatterjee - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 378 of 1954
Judge
Reported inAIR1955Cal192
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rules 2, 3, 5 and 5(2) - Order 41, Rule 23
AppellantNirmal Kumar Mitra
RespondentMonoranjan Chatterjee
Appellant AdvocateSatya Priya Ghose, Adv.
Respondent AdvocateBenoyendra Deb Raimahasay and ;Chaitanya Chandra Mukherjee, Advs.
Cases ReferredAyyar v. Muthuswamy Ayyar
Excerpt:
- .....show that the plaintiff was sufficiently well off or that his evidence should not be accepted. the learned judge relying on the evidence of the plaintiff held that he was a pauper and made an order accordingly. it is against that order that the present petition has been made to this court. 3. at the hearing before us the learned advocate for the petitioner contended that the learned subordinate judge did not take into consideration one important fact. he contended that the plaintiff in his evidence admitted before the court that he has got an ancestral house at faridpur in pakistan. the learned judge did not in his judgment refer to that fact at all, nor did he take that fact into consideration in arriving at his decision. the learned advocate further contended before us that in view of.....
Judgment:

S.R. Das Gupta, J.

1. This is a petition for revision of an order of the Subordinate Judge, 24 Parganas. By the said order the learned Subordinate Judge held that the opposite party was a pauper and allowed his application to be adjudged as a pauper with costs.

2. The suit out of which this application arises was filed on 21-7-1953 and there was a prayer that the plaintiff should be adjudged a pauper. The application for permission to sue as a pauper did contain the particulars required in regard to plaints in suits and there was a schedule attached thereto setting out the properties which according to the petitioner belonged to him with the estimated value thereof. The application was also signed and verified in the manner prescribed for the signing and verification of plaints. The value of the properties as given in the said Schedule which was schedule 'B' was only Rs. 30/- and it consisted of a bed, utensils and sundry articles.

At the hearing before the learned Subordinate Judge the plaintiff gave evidence and according to his evidence his net income is Rs. 65/- per month derived from purchase and sale of old bottles. His further evidence was that he has seven mouths to feed and the rent of the housewhere he lives with his family is Rs. 26/- per month. There was no evidence given on the side of the opposite party to show that the plaintiff was sufficiently well off or that his evidence should not be accepted. The learned Judge relying on the evidence of the plaintiff held that he was a pauper and made an order accordingly. It is against that order that the present petition has been made to this Court.

3. At the hearing before us the learned Advocate for the petitioner contended that the learned Subordinate Judge did not take into consideration one important fact. He contended that the plaintiff in his evidence admitted before the Court that he has got an ancestral house at Faridpur in Pakistan. The learned Judge did not in his judgment refer to that fact at all, nor did he take that fact into consideration in arriving at his decision. The learned Advocate further contended before us that in view of the fact that in Schedule 'B' referred to above this property was not included the learned Judge should have rejected the application for permission to sue as a pauper under Sub-rule (a) of Rule 5 of Order 33, Civil P. C.

4. So far as the second contention of the learned Advocate is concerned we do not agree that the learned Subordinate Judge should have rejected the application under Sub-rule (a) of Rule 5 of Order 33, Civil P. C.

Rule 5 'inter alia' lays down that the court shall reject an application for permission to sue as a pauper (a) where it is not framed and presented in the manner prescribed by Rules 2 and 3 or (b) where the applicant is not 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; a schedule of any moveable 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 plaints.

The learned Advocate's contention is that inasmuch as this house at Faridpur has not been set out in the schedule annexed to the application for permission to sue as a pauper the provisions of Rule 2 have not been complied with and therefore under Sub-rule (a) of Rule 5 the application should have been rejected.

In our opinion the non-inclusion of any particular property in the schedule annexed to an application for permission to sue as a pauper would not entitle a Court to reject an application under 'Rule 5 of Order 33, Civil P. C. What is laid down in Sub-rule (a) of Rule 5 is that where an application is 'not framed and presented in the manner prescribed by Rule 2.' the Court shall reject the said application. An application can be said to have been framed & presented in the manner prescribed by Rule 2 if in fact it contains the particulars in regard to plaints, a schedule of the movable and/or immovable property alleged by the applicant as belonging to him with the estimated value thereof and is signed and verified in the manner prescribed for the signing and verification of plaints.

What Sub-rule (a) of Rule 5 insists upon is that the (frame of the application must be in accordancewith Rule 2. It does not say that all the particular given in the application must be correct. That question as to whether or not the particulars of the properties which are set out in the schedule to the petition are correct has to be investigated at a subsequent stage, and if on such investigation the court comes to the conclusion that some properties were omitted from the schedule annexed to the petition, then the court should proceed to determine the value of these properties and taking the said value 'into consideration determine whether or not the applicant is a pauper. If the court finds on ascertaining the value of the saw property and the other properties which are set out in the schedule that the applicant is not ft pauper, then the Court should dismiss the application on that ground, i. e., he is not a pauper.

This view of ours finds support from a decisionof this Court in the case of -- 'Bagala SundariDevi v. River Steam Navigation Co. Ltd. : AIR1934Cal640 . Their Lordships in deciding .that case observed as follows:

'From what I have stated above it would appear'that -Bagala's original application for permission' to sue as a pauper had all the particularthat are required with regard to a plaint in asuit, it had been duly signed and verified and it has attached to it a schedule, containing thename, of some immovable properties with anestimated value thereof. That being so, therewas in my opinion no defect in the form orframe of the application and the omission toInclude one solitary item of property was, inmy judgment, not a non-compliance with theprovisions of Order 33, Rule 2, Civil P. C. This viewof mine is in agreement with the decision of thePatna High Court in the case of -- 'Birj BallatoLallji v. Beney Krishna', AIR 1928 Pat 28 (B),and also of the Madras High Court in -- 'Kuppu-swamy Ayyar v. Muthuswamy Ayyar', AIR 1915Mad 652 (C).'

We are in entire agreement with the view expressed by their Lordships in the said case. In the present case also the application for permission to sue as a pauper had all the particulars required with regard to a plaint in a suit, it had been duly signed and verified and it had attached to it a schedule containing some movable properties . with an estimated value thereof. That being so, there was no defect in the form or frame of the application. The application was framed in accordance with Rule 2 of Order 33, Civil P. C. In that view of the matter there has been no non-compliance with the provisions of Order 33, Rule 2 of the Code and the application cannot be rejected under sub (a) of Rule 5 of the said Order. In the premises we are unable to accept this contention of the learn ed Advocate for the petitioner.

5. The other contention, of the learned Advocate for the petitioner seems to us to be sound. It does appear from the evidence given by the opposite party that he has a house at Faridpur in Pakistan. It is true that at the end of his evidence he has said that he possesses a ghar in Pakistan but the fact remains that the learned. Subordinate Judge has not gone into the question regarding the value of the said house or gharnor has he dealt with that matter in his Judgment In the circumstances we fail to see how the learned Subordinate Judge could without arriving at the valuation of the said house at Paridpur come to a conclusion that the opposite party was a pauper.

6. In the result, therefore, the order of the teamed Subordinate Judge is set aside and the matter is sent back to him to be decided on further materials.

7. In the special circumstances of this case we make no order as to the costs of this application.

Sarkar, J.

8. I agree.


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