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Sita Nath Shah Bonik Vs. Radha Raman Shah Bonikya - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in50Ind.Cas.676
AppellantSita Nath Shah Bonik
RespondentRadha Raman Shah Bonikya
Excerpt:
civil procedure code (act v of 1908), order xxxiii, rules 4, 7 - application for leave to sue as pauper--inquiry, scope of. - .....the evidence of the applicant himself on the merits of the claim in such an inquiry, but that the court has to determine whether the allegations in the petition and the examination of the petitioner himself disclose a cause of action. (see civil rule no. 384 of 1918 decided on the 25th november 1918.) the applicant, no doubt, can be examined on the merits of the cause as rule 4 itself dearly lays down, in the present case the learned subordinate judge has found that the examination of the petitioner as well as the allegations in the petition show that there was a cause of action. it is contended before us that the learned subordinate judge disallowed some questions in cross-examination. this, however, was not alleged in the petition to this court nor taken in the grounds. we are told.....
Judgment:

1. This Rule was granted in connection with an order made by the Court below allowing an application for leave to sue as a pauper. Since the Rule was granted we have considered the authorities bearing on the scope of an inquiry under Order XXXIII, Rules 4 and 7 of the Code of Civil Procedure, and have held that the Court cannot take evidence except the evidence of the applicant himself on the merits of the claim in such an inquiry, but that the Court has to determine whether the allegations in the petition and the examination of the petitioner himself disclose a cause of action. (See Civil Rule No. 384 of 1918 decided on the 25th November 1918.) The applicant, no doubt, can be examined on the merits of the cause as Rule 4 itself dearly lays down, In the present case the learned Subordinate Judge has found that the examination of the petitioner as well as the allegations in the petition show that there was a Cause of action. It is contended before us that the learned Subordinate Judge disallowed some questions in cross-examination. This, however, was not alleged in the petition to this Court nor taken in the grounds. We are told that an application for review of the order was presented to the learned Subordinate Judge before this Court was moved. Under the circumstances, the Rule must be discharged with costs one gold mohur.


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