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Manorama Dasi Vs. Sabita Dasi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1990 of 1949
Judge
Reported inAIR1951Cal357,54CWN848
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 39, Rule 1
AppellantManorama Dasi
RespondentSabita Dasi
Appellant AdvocateC.F. Ali and ;S.P. Chowdhury, Advs.
Respondent AdvocateParesh Nath Mukherjee and ;Chandra Nath Mukherjee, Advs.
Cases ReferredTotaram Ichharam v. Dattu Mangu A. I. R.
Excerpt:
- .....of purna chandra v. tara prosad, 21 c. w. n. 870 : (a. i. r. (4) 1917 cal. 852) the question of inherent jurisdiction was never argued or decided. all that this ct. decided was that, pending the disposal of an application to sue in 'forma pauperis,' there was no suit before the ct. and therefore the ct. had no jurisdiction to pass an order under order 38, rule 5 of the code, namely, an order of attachment before judgment. in the present case however the order has not been passed under order 39, rule 1 but in the exercise of the inherent powers of the ct. therefore this decision has really no application; on the other hand, there are decisions of other high courts which support the view that a ct. may, in the exercise of its inherent jurisdiction, pass an order which partakes of the.....
Judgment:

Sen, J.

1. This Rule has been obtained by the deft, against order passed by the Dist. J., Murshidabad directing her not to alienate certain properties without the permission of the Ct.

2. The facts briefly are as follows : A suit was instituted 'in forma pauperis' by Sabita Dasi, a minor represented by her guardian, for a declaration that she was entitled to main, tenance out of the property of her deceased father and for a declaration of a charge for her maintenance on those properties. The property was in possession of her step-mother who inherited a limited interest in that property on the death of the father of Sabita Dasi. While the application for permission to sue as a pauper was pending, Sabita applied for an injunction against her step-mother restraining her from disposing of the property pending the disposal of the suit on the ground that if the property were disposed of in the meantime there would be nothing left upon which she could get a charge for her maintenance. She made the usual allegations that her step, mother was disposing of the property for the purpose of depriving her of her rights. The learned Subordinate Judge before whom this application was made did not grant an injunction in the broad terms prayed for, but restrained the step-mother from selling any property without the permission of the Ct. till the disposal of the suit. His intention obviously was to prevent the step-mother from disposing of the property except for legal necessity pending the disposal of the suit. An appeal to the Dist. J. was dismissed. Hence this rule.

3. The first question for decision is whether the Ct. had any jurisdiction to pass such an order. I must hold that the Ct. had no jurisdiction to pass any order under Order 39, Rule 1, Civil P. C., as there was no pending suit at that time. This is the view expressed in cases decided by this Ct. although there are decisions to the contrary by other High Courts. It is argued, however, on behalf of the opposite party that the order was not passed under Order 39, Rule 1 of the Code, but in the exercise of the Ct.'s inherent powers saved by Section 151, Civil P. C. The question which therefore arises is whether the Ct. has such inherent powers. As regards this I have no doubt. Section 151, Civil P. C., saves certain powers of the Ct. and permits the Ct. to make orders ex depito justia where there is no express provision in the Code for making such orders and where there is no prohibition in the Code against the making of such orders. It seems to me that pending the decision of the pauper application the Ct. cannot be left powerless to protect the interests of the pauper. It has inherent power to pass an order of the nature of the present one if the ends of justice require the passing of such an order.

4. In the case relied on by the learned Advocate for the petnr., namely, the case of Purna Chandra v. Tara Prosad, 21 C. W. N. 870 : (A. I. R. (4) 1917 Cal. 852) the question of inherent jurisdiction was never argued or decided. All that this Ct. decided was that, pending the disposal of an application to sue in 'forma pauperis,' there was no suit before the Ct. and therefore the Ct. had no jurisdiction to pass an order under Order 38, Rule 5 of the Code, namely, an order of attachment before judgment. In the present case however the order has not been passed under Order 39, Rule 1 but in the exercise of the inherent powers of the Ct. Therefore this decision has really no application; on the other hand, there are decisions of other High Courts which support the view that a Ct. may, in the exercise of its inherent jurisdiction, pass an order which partakes of the nature of an order under Order 39 where no suit is pending by reason of the fact that the disposal of an application for leave to sue as a pauper had not yet been decided. I would refer to one of these eases, namely, the case of Dhaneshwar Nath v. Ghanashyam Dhar : AIR1940All185 . The decision of the Bombay High Court has gone still further. In the case of Totaram Ichharam v. Dattu Mangu A. I. R. (30) 1943 Bom. 143 : (I. L. R. (1943) Bom. 138) Beaumont C. J. held that the filing of an application in the form of a plaint asking permission to sue 'in forma pauperis' really commences the suit and pending the determination of the application the deft. has a right to apply under Order 39, Rule 7, Civil P. C. I hold therefore that the Ct. has inherent jurisdiction to make an order like the one which has been made in the exercise of the inherent powers saved by the provision of Section 151, Civil P. C.

5 The next question for decision is whether in the circumstances of this case such an order is really necessary for the ends of justice. In the exercise of our jurisdiction which is saved to us by the provisions of Section 151 of the Code we should be extremely careful in passing orders and it is only when no other relief is possible and when relief is urgently called for that we should exercise our inherent powers, and when we do exercise such powers we should limit the scope of such exercise to as narrow a compass as possible. We are of opinion that in this case the order is an eminently reasonable one. The deft. has no right to dispose of the property except for legal necessity. All that the Ct. has directed her to do is to ask for the permission of the Ct. before she disposes of her property. No unqualified order of restraint has been passed upon her. The minor in our opinion should be safeguarded so that she may get her maintenance. The deft. is a step-mother. It is not unknown that a step-mother often has no hesitation in depriving her step-children of their rights. The Ct. should be careful to protect the rights of a minor in a case of this description. In my opinion the order is eminently reasonable and it is quite limited in scope.

6. A point was taken by the opposite party that the application was incompetent. It was argued that, the order having been passed by the first Ct. in the exercise of the Ct. inherent jurisdiction, no appeal lay to the Dist. J. and that the remedy of the petnr. was to move this Ct. direct under the provisions of Section 115, Civil P. C. This is quite correct but we do not reject the petn. on this narrow technical ground but on the grounds stated above. The rule is discharged with costs.

K.C. Chunder, J.

7. I agree.


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