K K MATHAI Vs. MATER DEI SCHOOL

JUDGEMENT

(1.) APPLICANT sued respondents for recovery of damages by filing an application for permission to sue as a pauper. Respondents on 25-8-75 obtained adjournment for filing reply. After they filed reply, applicant filed replication. Then issues were framed. Case was then being made ready for trial and before that respondent applied u/s 34 of Arbitration Act, claiming that pauper application was not a legal proceeding for purposes of S. 34, Arbitration Act.] Para 5 onwards judgment is -

(2.) THERE is a divergance of the judicial opinion with respect to the question whether an application for permission to sue as a pauper commences a suit. The consensus is that a suit commences when an application is presented for permission to sue as a pauper and there is no postponement of the acquisition of the status of the suit until the admission of that application under Rule 8. In Vijai Pratap Singh Vs. Dukh Haran Nath Singh and another, A.I.R. 1962 Supreme Court 941, the Supreme Court' held that an application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act, that if the claim made by the applicant that he is a pauper is not established the application may fail, and that there is nothing personal in such an application. It is held that "The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented." Thus the proceedings which commence on an application under Order 33 is a legal proceedings, and the prayer for permission to sue as a pauper is one of the prayers in the plaint which ultimately, if allowed, may be registered as a plaint in the suit., The application under Order 33 is, therefore, a legal proceeding within the meaning of section 34 of the Arbitration Act, 1940.