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Atul Chandra Sen and ors. Vs. Raja Peary Mohan Mookerjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.812
AppellantAtul Chandra Sen and ors.
RespondentRaja Peary Mohan Mookerjee and ors.
Excerpt:
civil procedure code (act v of 1908), order xxxiii, rules 15, 5 and 7 - application to sue in forma pauperis--refusal under rule 5, whether includes rejections under both rules 5 and 7--ordinary suit, institution of--review - .....decided cases in the courts are such cases as these, where the court has not passed the order of refusal or rejection but merely returned the application to have the question of pauperism tried by a court of concurrent jurisdiction, or where it has struck off temporarily the application for default by non-appearance. but there is no authority for holding that where the application has been deliberately framed in fraud of the conscience of the court and false suppression of property has been found, the rejection on that ground does not constitute a bar. a case reported in 1870 is cited before us, in the matter of the petition of rani umasundari debi 5 b. l. r. app. 29, but it is clear that this has nothing to do with the present question. that was a case where it was laid down by this.....
Judgment:

1. The question which is raised by this Rule is really one as to what constitutes the refusal to entertain an application to sue in forma pauperis under rule 15, Order XXXIII, Civil Procedure Code.

2. It appears that the applicant applied once before the same learned Judge and evidence was taken on both sides. It was found that the applicant had made false statements, that his own purohit contradicted him and he was owner of a house. The Judge, therefore, rejected his application basing his decision formally upon rule 2, namely, that he had not furnished the particulars required with regard to the plaint.

3. It was sought to be argued at first that rule 15, Order XXXIII, applies to refusals under rule 7 and does not apply at all to refusals under rule 5. That contention cannot for one moment be entertained, for there is not the slightest doubt that all the grounds in rule 5 except the ground (a) are grounds going to the merits and only to be determined by evidence. The question, therefore, narrows itself to this, namely, whether the rejection under rule 5 (a) in all cases is free from the bar laid down in rule 15. We do not think that it is, and no authority has been shown to us to enable us to find that it is. It has been held in numerous cases that on the rejection of an application for leave to sue as pauper the only course open to the applicant is to institute a suit in the ordinary way. There is no distinction between rejection under rule 5 and an order of refusal under rule 7. The only exceptions which are to be found in the decided cases in the Courts are such cases as these, where the Court has not passed the order of refusal or rejection but merely returned the application to have the question of pauperism tried by a Court of concurrent jurisdiction, or where it has struck off temporarily the application for default by non-appearance. But there is no authority for holding that where the application has been deliberately framed in fraud of the conscience of the Court and false suppression of property has been found, the rejection on that ground does not constitute a bar. A case reported in 1870 is cited before us, In the matter of the petition of Rani Umasundari Debi 5 B. L. R. App. 29, but it is clear that this has nothing to do with the present question. That was a case where it was laid down by this Court that the Judge refusing an application to sue in forma pauperis is competent to entertain a petition of review of his own order. That nobody doubts. But if this be taken as an application for review before the same Judge Babu Upendra Chandra Mukherjee, all we can say is that he has again given good reasons for rejecting it. Therefore, it would be an order refusing to review with which we cannot interfere.

4. The result is that the Rule is discharged with costs, one gold mohur.


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