ABDUL KHADER ROWTHER Vs. APPU

JUDGEMENT

(1.) THE petitioner's application to sue in forma pauperis was dismissed by the court below, broadly on two grounds. THE first ground was that in showing his assets, he intentionally suppressed some, and the second, that he was possessed of means to pay the requisite court fees.

(2.) COUNSEL for the petitioner urged that even if some assets are left out in the petition this will not entail dismissal of the petition as what is fatal is the intentional omission to include such assets. Reliance was placed on the decisions reported in AIR. 1928 pat. 28, AIR. 1934 Cal. 640. AIR. 1941 Pat. 638, AIR. 1954 Mad. 537, and 1961 Punj. 131, in support of this proposition. Some of these decisions stress that the utmost good faith is required of the petitioner in the matter of disclosure of assets but all the decisions say that an intentional omission should result in the dismissal of the petition. It was pointed out that the decisions referred to above failed to notice an earlier decision of the Madras High Court viz. , Kuppusamy v. Muthusamy (AIR. 1915 Mad. 652 ). It was held in AIR. 1915 Mad. 652 that the word 'framed' in 0. 33 R. 5 did not mean that the schedule of assets should be exhaustive and that the omission to include some assets would not be a ground for 'rejecting' the application. It was pointed out that the omission might be due to inadvertence. In Nirmal Kumar v. Manoranjan (AIR. 1955 Cal. 192) it was held that what sub-rule (a) of 0. 33, r. 5 required was that the frame of the application should be in accordance with r. 2 and not that the particulars given should be correct. The position as I understand it is that if the petition is properly framed it cannot be 'rejected' under R. 5 (a) but should be enquired into, if there is objection about the correctness of the particulars in the schedule. I am inclined to hold that any deliberate omission to include all the assets in the schedule should entail the dismissal of the application under 0. 33, R. 7. I may add that a Bench of this Court has taken this view in C. M. P. No. 69 of 1962 (Supreme Court) in a. S. No. 404 of 1959.