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Satish Chandra Vs. Phani Bhusan De and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1287 of 1950
Judge
Reported inAIR1952Cal696,56CWN207
ActsCode of Civil Procedure (CPC) , 1908 - Sections 149 and 151 - Order 33, Rules 1, 7 and 7(3)
AppellantSatish Chandra
RespondentPhani Bhusan De and ors.
Appellant AdvocateChandra Sekhar Sen and ; Bansorilal Sarkar, Advs.
Respondent AdvocateGuruprosad Ghose, Adv.
Cases ReferredLalit Mohan v. Satish Chandra
Excerpt:
- chakravartty, j.1. on 4-8-1949, one indrabala dasi applied to the 1st subordinate judge of midnapore for leave to bring and prosecute a suit as a pauper. she filed a single document which was, in form, a plaint, but contained a statement to the effect that the plaintiff was a person of no means and among the reliefs claimed was a prayer that she might be permitted to prosecute her suit in forma pauperis. on that document being presented, the learned judge started a miscellaneous judicial proceeding, but while that proceeding was still pending, indrabala died on 18-11-1949. on 17-12-1949, indrabala's son, phani bhusan de, who is the opposite party to this rule, applied for substitution of himself in the place of indrabala and for leave to continue the litigation on such substitution. by an.....
Judgment:

Chakravartty, J.

1. On 4-8-1949, one Indrabala Dasi applied to the 1st Subordinate Judge of Midnapore for leave to bring and prosecute a suit as a pauper. She filed a single document which was, in form, a plaint, but contained a statement to the effect that the plaintiff was a person of no means and among the reliefs claimed was a prayer that she might be permitted to prosecute her suit in forma pauperis. On that document being presented, the learned Judge started a Miscellaneous Judicial proceeding, but while that proceeding was still pending, Indrabala died on 18-11-1949. On 17-12-1949, Indrabala's son, Phani Bhusan De, who is the Opposite Party to this rule, applied for substitution of himself in the place of Indrabala and for leave to continue the litigation on such substitution. By an order passed on the same date, the learned Judge allowed substitution as prayed for, directed the original application to be amended and directed the Opposite party to file all requisites for a fresh service of notices by a certain date. Thereafter, on 4-1-1950, the principal defendant in the intended; suit, who is the petitioner before us, filed an objection to the effect that there could be no substitution in an application for leave to sue as a pauper. He added that, on merits too, the Opposite Party was not entitled to leave to sue in forma pauperis, as he had sufficient means to pay the full court-fees on. the claim and that his only remedy was to bring. a fresh suit on his own account in the ordinary manner. After certain adjournments, the matter came to be heard on 10-6-1950, when it was represented on behalf of the Opposite Party that he-did not wish to proceed with his application, as no substitution in an application for leave to sue as a pauper was possible and that he would file, a separate application. Thereupon, the learned Judge dismissed the miscellaneous case for default. On the same day, the Opposite Party filed a fresh application in which he stated that he was prepared to continue the suit on payment of court-fees and he prayed that the order for his substitution, already made, might be maintained and he might be granted two months' time to pay the requisite court-fees.

The hearing of this application was adjourned from date to date for various reasons, but before it came to be heard, the Opposite Party made a. third application on 4-7-1950, under Section 151, Civil P. C, by which he repeated his representation that he desired to continue the suit on payment on court-fees and prayed that the order of dismissal for default, passed on his first application on 10-6-1950, might be vacated. This application was, by an order passed on 8-7-1950, directed to-be put up on the 13th which had already been fixed for the hearing of the earlier application. On 13th July, the learned Judge heard arguments but adjourned the case to the next day for further consideration, as the pleaders of both the parties wanted ten days' time to look more fully into the law. For one reason or another the hearing could not be resumed till 20th July when the learned Judge heard further arguments and allowed the-application of the Opposite Party. He confirmed the order for substitution and amendment made-on 17-12-1949, 'as made in respect of the plaint, and not in respect of the pauper application.' On that basis he ordered that the Opposite Party would be allowed to continue the suit on payment of the necessary court-fees and he granted the Opposite Party a fortnight's time to comply with the condition. It is against this order that the present Rule is directed.

2. The learned Judge proceeded on the view that an application for leave to sue as a pauper was not merely such an application but also a plaint and that, consequently, even after the application was dismissed, the plaint still remained before the Court as a plaint on which proper court-fees had not been paid. Since the plaint had still to be dealt with, the Court, he held, could exercise, in respect of it, its powers under Section 149, Civil P. C. and could, in the present case, grant the Opposite Party, on whom the right to sue had devolved, an extension of time to put in the requisite court-fees. The learned Judge pointed -out further that the dismissal of the pauper application in the present case was not a dismissal under E. 7 (3) of Order 33 and, consequently, the provisions of Rule 15 of the Order would not apply. He added that he preferred to follow the Division Bench ruling in the case of Jagadeeshwaree De-bee v. Tinkari Bibi, 62 Cal. 711 single-Judge decision in Bisivanath Das v. Khajctrali Molla, I. L. R. (1939) 2 cal. 68: 43 cal. W. N. 686 which was based on an earlier Calcutta case and had taken a contrary view. The earlier case referred to by the learned Judge was obviously the case of Aubhoya Ghttrn Dey v. Bissesswari, 24 Cal. 889, a decision of a Division Bench.

3. It was also held by the learned Judge that, in any event, he could treat the application filed on 10-6-1950, as an application under Section 151, Civil P. C. and allow the Opposite Party, in the ends of justice, to continue the suit filed by his mother. No order appears to have been passed on the application tiled on 4-7-1950, presumably in the view that the order of dismissal passed on 10-6-1950 was an order dismissing the pauper application and not also rejecting the plaint and, therefore, it was not necessary to vacate it.

4. Before us, it was contended on behalf of the petitioner that there was no plaint before the learned Judge, independent of and severable from the pauper application, and that the moment the application of the Opposite Party for substitution in the pauper application was dismissed, the document which had been filed by his deceased mother went wholly off the record and there was nothing left before the learned Judge on which he could make an order under Section 149 of the Code. The dismissal of the application for substitution, so it was said, meant that the Opposite Party's own application for leave to sue as a pauper was dismissed and thereafter, by reason of the provision of Order 33, n. 15, the Opposite Party could only proceed by way of a fresh suit on complying with the conditions laid down in the said rule.

5. I may point out here, that the practical implication of the contention of the petitioner was that the Opposite Party, after the dismissal of his application, had no longer any right to sue left to him or at least would have to establish, by proving special circumstances, that the right still survived. According to the document filed by his mother, the cause of action for the suit, which was a suit for a declaration of title and recovery of possession, arose in February 1938 and, therefore, the period of limitation for a suit thereon expired in February 1.950. On 10th June 1950, when the application of the Opposite Party was dismissed, the time for bringing a fresh suit was already gone. It follows that if he could not avail himself of the plaint filed by his mother, he would have serious difficulty about limitation in bringing a suit on his own, because he would not be able to invoke the aid of Section 5, Limitation Act which does not apply to suits, nor would Section 14 seem to have any application, although in one case it was held that Section 14 would apply to such a case. Kalidasi Dasi v. Santosh Kumar Pal, I.L.R. (1939) 1 Cal. 112.

6. On the question as to whether after an application for leave to sue as a pauper is dismissed, the Court can still act under Section 149 of the Code and grant time to the applicant to pay court-fees on the potential plaint, there is undoubtedly a conflict of opinion in this Court. The conflict arises out of a difference of opinion as to the structure of an application to sue in forma pauperis viz. whether it is a composite document made up of a plaint and an application or whether it is only an application which becomes a plaint on being granted, and also as to the effect upon it of an order of dismissal under Rule 7 (3), viz., whether such dismissal affects only. the application part of it, leaving the plaint part still to be disposed of or whether it throws out the whole document and effaces the entire matter before the Court, so that the applicant, if he wishes to proceed further, must commence de novo. On one view, an application under Order 33, Rule 2 contains a plaint plus a prayer for leave to sue in forma pauperis and the Court, after it has refused the prayer under Rule 7 (3), has still the plaint before it in respect of which it can make an order under Section 149 of the Code for payment of court-fees, with the effect mentioned in the section. On the other view, there is at the beginning no plaint at all, apart from the application, and it is the application itself which, if it is granted is 'deemed the plaint', as Rule 8 provides and, therefore, once the application is dismissed under 11. 7 (3), there is no plaint, and in fact nothing, left before the Court as regards which it can make an order under Section 149. In decisions where this view has been taken, support has been drawn from It. 15 of the order which provides that after a prayer for leave to sue as a pauper has been refused, the applicant can only 'institute a suit in the ordinary manner' which, it has been said, implies that he must commence a suit anew by filing a plaint and cannot make use of anything contained in his original application. This, it has been held, is the true position even when an application for leave to sue in forma pauperis is not framed in strict accordance with Order 33, Rule 2, but two separate documents, a plaint and an application, are filed.

In our Court, the first view is represented by the cases of Jagadeeshwaree Debee v. Tinkari-(Guha and Bartley JJ.) 62 Cal. 711; Bhusan Chandra v. Kanai Lai (D. N. Mitter J.) 41 cal. W. N. 537, Kali Dasi Dasi v. Santosh Kumar Pal. (S. K. Ghose and Patterson JJ.), I. L. R. (1939) 1 cal. 112; and to a certain, extent, Mrinalini Debi v. Tinkori Deli (Ghitty and Teunon JJ.) 16 Cal. W. N. 641. The second view is represented by the cases of Aubhoya Churn v. Bissesswari (Macpherson and Ameer Ali JJ.) 24 cal. 889 and Biswanath Das v. Khejerali Molla (Edgley J.) 43 cal. W. N 686=I. L. R. (1939) 2 Cal 68. The first set of cases rely upon the decision of the Judicial Committee in Stuart Skinner v. William Order, 6 Ind. App. 126 (P. C.) : the second set distinguish it.

7. The learned Judge below proceeded on the view that this conflict of authority had to be faced even in the present case and, for himself, he resolved the conflict by electing to follow the decision in Jagadeeshwaree Debee v. Tinkaribibi, 62 Cal. 711. Mr. Sen, who appeared for the petitioner before us, also thought that the conflict had to be reckoned with and pressed us strongly to refer the case to a Full Bench so that the uncertainty about an important point of procedure might be removed. At one stage of the argument, 'we felt inclined to adopt that course, but having looked closely into the record, we have reached the conclusion that the present case lies outside the area of the conflict.

8. Two points of distinction between the cases mentioned above and the present case are, in my opinion, fundamental. In all the above-mentioned cases, whether belonging to the one group or the other, the prayer for leave to sue in forma pauperis was refused under It. 7 (3) and, secondly, it was the original applicant who was granted or refused time to pay in the necessary court-fees. in the present case, neither the application of Indrabala, nor the application of the Opposite Party was dismissed under Rule 7 (3). The first abated and the second was not proceeded with. The conflict of judicial opinion which has arisen relates entirely to the effect of an order of dismissal under It. 7 (3) and consequently where there has been no such dismissal, the conflict is not attracted. In the second place, the conflict is about the rights of the original applicant who, in one view, sought to defraud the Revenue and has incurred the consequences laid down in B. 15, while, in the other view, he is liable only to the penalty of the dismissal of his application but is entitled to proceed with his plaint as an ordinary plaintiff. The conflict does not touch the legal representative of a deceased applicant whose case did not fall to be considered in any of the decisions of either set.

9. If such be the position, the present case is outside the conflict and must be decided on other principles about which there is happily, no divergence of opinion. Indeed, the case of a legal representative of an applicant for leave to sue in forma pauperis is free from authority, so far at least as this Court is concerned. But I may perhaps explain a little further what questions do not arise so that we may see more clearly the exact point that requires to be decided. A conflict of opinion exists as to the effect of a dismissal of a pauper application under B. 7 (3), but that question, as I have already pointed out, does not arise in the present case. No conflict exists as to the effect of a rejection of the applicant's prayer under B. 5, but that question' also does not arise, for there was no such rejection. Lastly, even in cases where it was held that after the dismissal of a pauper application, time could not be granted to the applicant for payment of Court-fees, the actual order made was that the applicant could pay Court-fees on the original plaint, but the plaint would be deemed to be filed on the date the Court-fees were paid. Such an order, as was pointed out by the Judicial Committee in Stuart Skinner v. W. Order, 6 Ind. App. 126 (p. C.), is manifestly illogical, because if after the dismissal of the pauper application, no plaint survived, which was the main ground of the decisions, no Court-fee could be paid on the once potential plaint, whether under an order of the Court under Section 149 of the Code or at the applicant's risk. I shall therefore proceed on the footing that if the abatement of Indrabala's application or the dismissal of the Opposite Party's own, meant the extinction of the whole matter before the Court, there could be no question of the Opposite Party paying in any Court-fees on Indrabala's plaint, whether under the order of the learned Judge under Section 149 or without such order and with the effect of starting a suit on the day the court-fees were paid.

10. Turning now to the facts of the case, there were two pauper applications, one of Indrabala and another of the Opposite Party, both of which failed or rather miscarried. When Indrabala died on 18-11-1949, no right to prosecute her pauper application survived to any body, Lalit Mohan v. Satish Chandra, 33 Cal. 1163, and consequently it abated. But did that mean that the suit she had filed and which she had sought to prosecute as a pauper also fell through and there was no suit left in which her legal representative could be substituted? The legal representative, it is true, could not take over the carriage of the pauper application or substitute himself therein, but if he wanted to pursue the same cause of action against the defendant, was he to bring a fresh suit? I am leaving aside for the moment the Opposite Party's own application which will be dealt with separately and am only considering the effect of abatement . by death of the application made by Indrabala. Suppose the Opposite Party had not tried to sue as a pauper, would ho still find no suit in which he could be substituted as an ordinary plaintiff? The case is not provided for in the Code and a rule must be evolved and supplied from good sense and reason. It mightseem at first sight that the matter is covered by the decision in 33 cal. 1163, cited above, but it will appear from a closer examination from the judgment and the statement of facts that, in that case, after the death of the original applicant whose application for leave to sae as a pauper had not been disposed of when he died, his son applied, fifteen years later, for substitution in the father's application to sue in forma pauperis and for permission to proceed with that application. All that was held in the case is that such substitution was not possible, although there are some incidental remarks in the judgment to the effect that till an application for leave to sue in forma pauperis is granted, there is no plaint. The son had not asked to be substituted in the suit and the question whether he could be so substituted was neither raised, nor decided.

11. If, when an applicant for leave to sue as a pauper dies before the application is disposed of, his legal representative cannot be substituted in the suit already brought before the Court, but must bring a fresh suit on his own account, serious difficulties as to limitation may arise. If for example, the deceased filed his application one day before the expiry of the period of limitation for the suit, a fresh suit by the legal representative will be barred by time. Neither Section 5, nor Section 14, Limitation Act would seem to afford any assistance in such a case. Yet, the pauper application by the deceased might have succeeded and if it did, there would be a good suit and no difficulty of any kind. It cannot be just that the death of the pauper plaintiff which prevents his pauper application being considered, should be allowed to non-suit his legal representative for . no fault of any body at all. As far as I can see, there is nothing in the Code which makes it necessary to take that view of the effect of the death of a pauper plaintiff before the disposal of his pauper application. Even assuming that when the application is dismissed under Section 7 (3) of Order 33, the plaint as well as the prayer for leave to sue in forma pauperis falls through and nothing survives, such is not the necessary consequence, under any provision of the Code, when the application abates by the death of the applicant before any orders can be passed on it.

That a pauper application 'contains in itself all the particulars the statute requires in a plaint, and plus these a prayer that the plaintiff may be allowed to sue in forma pauperis' can no longer be disputed, for that was what was held by the Judicial Committee in Stuart Skinner v. William Order, 6 Ind. App. 126 (p.c.) The conflict of opinion which has arisen is only as to whether, when the prayer for leave to sue in forma pauperis is refused under Rule 7 (3), the plaint can still be proceeded with on payment of court-fees as a plaint filed on the date when the application was made. In Stuart Skinner v. W. Order, it was held by the Judicial Committee that when the prayer was not proceeded with, only that much of the 'petition of plaint' was given up but no more and on payment of court-fees which could be allowed to be made, the plaint operated from its original date of filing. In my opinion, at least in cases where there has been no dismissal of the pauper application under Rule 7 (3), the reasoning in Stuart Skinner y.W. Order, would fully apply and when the applicant has died during the pendency of his application, there would still be a plaint on the file of the Court which would take effect from the date when the application was filed on substitution of the legal representative of the deceased and on payment of court-fees by him. So it was held in Duraipandyan v. Solaimalai Pillai, 58 Mad. 169 and D. Brahamaramba v. D. Seetharanayya, A. I. R. 1947 Mad. 405 and if I may say so with respect, these cases were rightly decided. I accordingly hold that after the death of Indrabala, the plaint was still alive. The Opposite Party could be substituted in it and the Court could grant him time for payment of court-fees under Section 149 of the Code.

12. That, however, is not the end of the matter, for the application made by the Opposite Party himself has still to be dealt with, it was contended on behalf of the petitioner that at least. when that application was dismissed on 10th June 1950, all the rights of the Opposite Party were, gone. As regards the application itself, I may point out first that although I have referred to it as a pauper application, it appears in fact to have been an application of a very anomalous character. All that was prayed for by it was substitution in the place of the original applicant Indrabala, consequential amendment of the application and leave to continue the litigation (Mokaddama.) Not a word was said about the Opposite Party-being himself a pauper and all the amendment prayed for was amendment of the cause-title, substituting the Opposite Party for Indrabala. No amendment was asked for of para 7 of the application which contained the necessary averments as to the pauperism of Indrabala, nor of Prayer 8 (Ka) which asked for leave to be given to Indrabala to sue, as a pauper, nor of Schedule 'Kha' to the application which contained a list of Indrabala's properties. In the circumstances it is possible to hold that the Opposite Party never asked for substitution of himself as the applicant for leave to sue as a pauper at all, but had only asked for substitution in the plaint. In view, however, of the fact that the Opposite Party stated at a subsequent stage that he did not wish to proceed with his application as no substitution was possible, I shall proceed on the footing that he himself regarded his application as an application for substitution in the pauper proceeding as well and therefore regarded it as a pauper application.

13. Even so, I am of opinion that the Opposite Party had very confused notions about his application and neither he, nor his legal advisers appear to have had a clear idea as to what its true nature and effect was. In the application which he made on 10th June 1950, for time to pay court-fees, the Opposite Party included a prayer that the substitution made on 17th December 1949, might be maintained; and by the application made on 4th July 1950, he prayed that the order dismissing his application passed on 10th June 1950 might be vacated, because he feared that the dismissal might affect the order for substitution which had earlier been made on that very application. It is obvious that although, in form, he had applied for substitution in the application, he was under the impression that he had asked for and obtained an order for substitution in the suit. There was some cause for that impression, because the prayers in the application included a prayer for leave 'to continue the litigation' which implied substitution in the suit and that prayer had been .made within time.

14. In those circumstances, it appears to me that the present, case falls to be decided on the principles laid down in two decisions of this Court. In the case of Durga Charan Naskar v. Doolihiram Naskar, 26 Cal. 925, a suit brought in forma pauperis on behalf of a minor, represented by his next friend, was dismissed under an alleged compromise and thereupon an appeal was preferred without paying any court-fees, the unstamped memorandum of appeal being filed along with an application for leave to appeal in forma pauperis. At the time of the hearing of the application, an objection was taken by the respondent that the minor had become entitled to some immoveable property and thereupon the guardian of the minor offered to pay proper court-fees within a month which was allowed by the Court. The appeal was filed within the period of limitation, but at the time the Court-fees were paid, limitation had expired. The Civil Procedure Code in force at the time was the Code of 1882 which had no section corresponding to Section 149 of the present Code, but it had Section 582A under which the Court had power to grant time for payment of court-fees on a memorandum of appeal, when the insufficiency was caused by mistake on the part of the appellant. An objection being taken before the High Court that the appeal to the lower appellate Court was out of time, it was held by Maclean C.J., and Banerjee J., that it was not. Their Lordships held further that the application for leave to appeal in fofma pauperis appeared to have been made under an honest mistake, that in the circumstances the Court below had made a proper order and that the case came under either Section 5, Limitation Act or Section 582A of the Code. It is not unreasonable', observed Maclean C. J.,

'that his (i. e. the minor's) advisers, seeing that he had been allowed to sue in the first Court in forma pauperis, may have supposed that the same liberty would be given as regards the appeal and that the memorandum was insufficiently stamped in that view.'

'The insufficiency of the stamp upon the memorandum of appeal', observed Banerjee J.,

'was evidently caused in this instance by the appellant thinking, erroneously as it now turns out to be, that he was entitled to appeal in forma pauperis, and I do not see any reason why a ease like this should be deemed not to come within the scope of either Section 582 A, Civil P. C., or Section 5, Limitation Act.'

It appears to me, from the nature of the application filed by the Opposite Party and the manner in which he dropped it, that the position in this case was very similar and that he filed the application under a mistaken notion that a pauper appeal (?) being there before the Court, he, as the heir of the deceased appellant (?) was entitled to be substituted in it as a matter of course. If so, the Court could properly grant him time, under Section 149 of the Code, to pay court-fees on the plaint, just as the Court was held to be entitled, in the case in 26 Cal. 925, to grant time to the appellant, under Section 582A of the old Code, to pay court-fees on the memorandum of appeal. But even if mistake be ruled out, the Opposite Party is in no worse position. In the case of Janakdhary Sukul v. Janki Koer, 28 Cal. 427, also decided by Maclean C. J., and Banerjee J., an application for leave to sue as a pauper was made, but an objection being raised by the defendant, the prayer was withdrawn and the plaintiff put in court-fees on a date which was beyond the period of limitation. It was held that the plaintiff's application not having been refused the decision in Stuart Skinner v. William Order, 6 Ind. App. 126 (P.C.), applied and the application, on which proper court-fees had been paid, was to be deemed to be a plaint presented on the day the application was filed.

The facts in the present case are essentially the same. Although the application of the Opposite Party was dismissed for default, it was only a formal dismissal and the position, in substance, was that on the objection raised by the petitioner the Opposite Party withdrew his prayer for leave to sue as a pauper and thereafter paid proper' court-fees on' the plaint within the time allowed by the Court. On those facts, it must be held that in spite of the dismissal of his application for non-prosecution, the Opposite Party could be allowed to pay court-fees on the plaint and the Court had power to grant him time to do so.

15. For the reasons given above, I am of opinion that in spite of the abatement of Indrabala's application, the plaint survived; that it also survived the dismissal of the Opposite Party's application for default; that the Opposite Party was entitled to be substituted in the plaint, and the Court had power to grant him time to pay court -fees thereon under Section 149 of the Code, as it did. The order of the Court below was, therefore, right and this rule must be discharged with costs, 2 G. M's.

P. N. Mookerjee J.

16. I agree but I would like to add a few words. The relevant facts have all been fully stated in the judgment which my Lord has just delivered. It is clear therefrom that there is no dispute that the original pauper applicant Indrabala Dasi died when her pauper application was awaiting the Court's decision, in other words, when the proceeding initiated by her said application was still pending. Clearly also there is no dispute that the opposite party applied within time for substitution in place of the deceased Indrabala in the said proceeding. That application for substitution was really in the nature of a composite application containing in substance, two prayers, one for substitution in respect of Indra-bala's right to sue and the other for substitution in respect of Indrabala's claim of pauperism. On 10-6-1950, what happened was that the opposite party wanted to withdraw his prayer for substitution in respect of Indrabala's claim of pauperism and asked for time to pay Court-fees on the claim in suit and, accordingly, upon the opposite party's filing the requisite application for withdrawal as aforesaid, the learned Subordinate Judge, by his order of that date, rejected his application for substitution so far as it related to Indrabala's claim of pauperism-the opposite party's application for time to pay court-fees and for leave, upon such payment, to continue the suit or litigation in a regular way was, however, left undisposed of on that day. That is how I read the applications and the order made on 10-6-1950. The position in this case has thus a close resemblance to that indicated in the cases of Stuart Skinner v. William Order, 6 Ind. App. 126 (P. C.) and Janakdhari Sukul v. Janhi Koer, 28 Cal. 427 and in the light of these authorities it must be held, in the circumstances of the present case, that the learned Subordinate Judge was right in his order, dated 20-7-1950, allowing the opposite party's prayers for substitution in respect of Indrabala's right to sue and for time to pay the requisite court-fees and for leave, upon such payment, to continue the suit or litigation in a regular way. That order, therefore, has to be affirmed and this Rule must, consequently, fail.

17. In the course of argument reference was made to certain cases of this Court which are apparently irreconcilable. The petitioner relied upon the cases of Aubhoya Ghuran v. Bissesswari, 24 Cal. 889 and Biswanath Das v Khejerali Molla 43 Cal. W. N. 686 and contended that the decisions reported in Jagadeeshwaree Debee v. Tinkari Bibi, 62 Cal. 711, Bhusan Chandra v. Kanai Lai 41 Cal. W. N. 537 and Kalidasi Dasi v. Santosh Kumar, : AIR1938Cal730 which favored the opposite party and were cited on his behalf were not good law. It is to be noticed, however, that in all the above cases the proceeding initiated by the pauper application had come to an end by the rejection of the pauper application and in the case of Lalit Mohan v. Satish Chandra, 33 cal. 1163 also the proceeding had been struck off and has also abated as no application for substitution was made in time and had thus terminated. Those eases, therefore, have no application to the case before us where, in the view I have impressed above of the happenings on 10-6-1950, there was no rejection of the pauper application nor any termination of the proceeding initiated thereby either by abatement or striking off or otherwise,- and, accordingly, it is not necessary to consider the conflict between the two sets of decisions (including the case in 33 Cal. 1163) cited above.

18. On behalf of the petitioner it was also sought to be argued that, upon the death of the pauper applicant, the entire proceeding initiated on the pauper application came to an end and therefore, no substitution was either possible or permissible. On this part of the case it is enough to say that vide Order 33 Rule 2 of the Code the pauper application contains in itself all the ingredients of the plaint together with a prayer for permission, to sue as a pauper, and, therefore, there is in it not only a prayer for leave to sue in forma pauperis but also a prayer for enforcement of the right to sue, that is, of the right sought to be sued upon, and, as in the present case only the first prayer had lapsed by withdrawal and the consequential order passed by the Court, as noticed above, there can be no ligitimate objection to the-substitution with regard to the other prayer, namely, that for the enforcement of the right to sue, and that is what has now been allowed by the-learned Subordinate Judge. This argument of the-petitioner also must, accordingly, fail.

19. In the result, therefore, I agree with my Lord in discharging the present Rule with costs.


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