SIRAJ UDDIN Vs. ABDUL HAQ PRACHA

JUDGEMENT

(1.) The plaintiff filed a suit for declaration to the effect that defendant No. 1 did not become Mutvalli ofthe waqf properties of Hazi Abdul Quyyum situate at HimaltonRoad, Delhi, either on the basis of the Toliatnama of 15/09/1947 or otherwise under the provisions of the Mohammaden Law. Aconsequential relief is sought that defendant No. 1 be restrained byan appropriate order from evicting or dispossessing the plaintiffs in pursuance of order of the Rent Controller dated 31/08/1960, passed inRent Control Case No. 1684 of 1959 entitled Abdul Haq Pracha v.Qutub Uddin and others. The property in respect of which the injunctionis sought is Shop No. 648, Himalton Road, Delhi. It is contended thatthe said order of Rent Controller is a nullity, having been passedwithout jurisdiction.

(2.) The suit has been resisted on various grounds, inter alia, that itwas not properly valued for the purposes of court-fees and no propercourt-fees has been paid. Prithvi Raj, J. by his order dated 10/05/1972 held that the suit was not properly valued for the purposes ofcourt-fees and he directed that the plaintiff should make up thedeficiency in court-fees within one month. This led the plaintiffs tofile Pauper Application No. 6 of 1972.

(3.) It has been contended by the plaintiffs/applicants that they arenot possessed of sufficient means to pay court-fees on the valuationof Rs. 55,000 and that they may be allowed to continue the suit informa pauperis. The application has been resisted by the defendantswho have contended that the application is not in proper form asprescribed by Order 33 rule 2 Civil Procedure Code ., that the plaint in suit No. 302of 1972 must be rejected under Order 7 rule II Civil Procedure Code for noncompliance with the order of court dated May 10, 1972, it is notadmitted that the plaintiffs were unable to pay the court-fees; andthat there is no provision in law to permit a suit already filed to becontinued as a suit in forma pauperis. It has also been contendedthat there is no subsisting cause of action and so, also the applicationis liable to be dismissed. The pleas of the defendants have been.traversed by the plaintiffs/applicants. On the pleadings of the partiesin this application, B. C. Misra, J. settled the following issues:-