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Ratnamala Dasi Vs. Kamakshya Nath Sen - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.9
AppellantRatnamala Dasi
RespondentKamakshya Nath Sen
Cases ReferredRanchod Morar v. Bezanji Edulji
Excerpt:
civil procedure code (act v of 1908), order xxxiii, rules 5, 15 - application to sue as a pauper, rejection of--subsequent application, whether barred--'right to sue'--'cause of action.' - .....it is in respect of the same right to sue; that is the right to 'sue which formed the basis of the previous application. now, admittedly the previous application did not show a cause of action. we are not unmindful that the expression used in rule 5 is 'cause of action,' whereas the phrase which appears in rule 15 is 'right to sue.' but, plainly the two rules are intended to cover the same ground, and, for the purposes of this matter, there is no substantial distinction between 'a right to sue' and 'a cause of action,' which refer to the same thing considered from different points of view. there is a further difficulty in the way of the opposite party. the second application is in respect of a suit in which maintenance is claimed for a period of more than two years subsequent to the date.....
Judgment:

1. We are invited in this Rule to consider the legality of an order dismissing an application for leave to sue in forma pauperis on the ground that it is barred by Order XXXIII, Rule 15, Civil Procedure Code. The petitioner is the wife of the opposite party. In 1916 she applied for leave to sue in forma pauperis to recover maintenance from her husband from April 1916 to the date of the institution of the suit. On that application, notice was issued to the opposite party and the application was refused on the ground mentioned in Rule 5, Clause (d), namely, that the allegations in the plaint did not show a cause of action. More than two years afterwards, she made the present application on the 5th August 1918 for leave to sue in forma pauperis to recover maintenance from her husband from April 1916 to the date of the institution of this suit. The Subordinate Judge has held that; the application is barred under Order XXXIII, Rule 15, and, in support of this view, has relied upon the decision in Ranchod Morar v. Bezanji Edulji 20 B. 86 : 10 Ind. Dec. (N.S.) 616.

2. Order XXXIII, Rule 15, is in these terms: An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue. This rule must be read along with the provisions of Rules 5, 6 and 7. Rule 5 authorises the Court to reject an application for permission to sue as a pauper on one or more of five specified grounds. The fourth of these grounds is that the allegations do not show a cause of action. This rule evidently contemplates a summary rejection by the Court at the earliest stage of the proceedings. Rule 6 next provides that where the Court sees no reason to reject the application on any of the grounds stated in rule S, it shall fix a day, of which at least ten days' clear notice shall be given to the opposite party and the Government Pleader, for receiving such evidence as the applicant may adduce in proof of his pauperism and for having any evidence which may be adduced in disproof thereof. Rule 7 lays down that on the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses, if any, produced by either party and may examine the applicant or his agent and shall make a memorandum of the substance of their evidence. The Court shall also hear any argument which the parties may desire to offer on the question, whether, on the face of the application and of the evidence, if any, taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in Rule 5. The Court shall then either allow or refuse to allow the applicant to sue as a pauper. It is plain that Rule 7 contemplates a refusal of the application on the fourth ground mentioned in Rule 5, namely, that the allegations of the petitioner do not show a cause of action. This is what happened here in the first instance. The petitioner thereupon moved this Court. The Court rejected the application and made an observation to the following effect:' The applicant may, however, apply to sue as a pauper on another plaint which shows a cause of action.' This observation was made ex parte and does not consequently operate as a binding decision between the parties. But we are not prepared to ignore the observation which was made by Mr. Justice Woodroffe and Mr. Justice Shamsul Huda. We have, however, independently of this observation, arrived at the conclusion that it was open to the petitioner to make a fresh application for leave to sue in forma pauperis in the circumstances which have happened in this case. The first plaint was rejected on the ground that the allegations did not show a cause of action. Thereupon the petitioner applied to the Court for leave to sue in forma pauperis on the basis of a plaint which, she alleged, disclosed a cause of action. In' our opinion, Rule 15 does not bar a second application in such circumstances. That rule contemplates the refusal of a second application when it is in respect of the same right to sue; that is the right to 'sue which formed the basis of the previous application. Now, admittedly the previous application did not show a cause of action. We are not unmindful that the expression used in Rule 5 is 'cause of action,' whereas the phrase which appears in Rule 15 is 'right to sue.' But, plainly the two Rules are intended to cover the same ground, and, for the purposes of this matter, there is no substantial distinction between 'a right to sue' and 'a cause of action,' which refer to the same thing considered from different points of view. There is a further difficulty in the way of the opposite party. The second application is in respect of a suit in which maintenance is claimed for a period of more than two years subsequent to the date when the previous application was filed. Now a right to maintenance is a recurring right, accruing from day to day. It may be extinguished or modified by a change of circumstances. It cannot by any stretch of language be suggested that the claim to maintenance for the period sub-subsequent to the presentation of the previous application is the same right to sue as furnished or would have furnished a cause of action for the previous application. On both these grounds, we hold that the Subordinate Judge should have dealt with the application on the merits and should not have dismissed it as barred under Order XXXIII, Rule 15.

3. The result is that this Rule is made absolute, the order of the Subordinate Judge set aside and the case remitted to him in order that he may deal with the case in accordance with law. The petitioner is entitled to her costs of this Rule to be realised from the opposite party. We assess the hearing fee at one gold mohur


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