MERCY Vs. KURIEN

JUDGEMENT

(1.) THE question raised in this revision petition is subtle and interesting, namely, whether the presentation of a pauper application to the ministerial officer of the Court was proper and valid. The court below held that it was not proper and for that reason, it dismissed the petition for permission to sue as pauper. Against the said order, the applicants, who filed the pauper application, have preferred this revision petition, which was referred by one of us ( mysel f ) to a Division Bench.

(2.) ORDER XXXIII, R. 3 of the Code of Civil Procedure reads as follows. "notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorise d agent who can answer-all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person. " The expression 'in person', a n has been pointed out, is relatable to 'applicant' and not to 'court'. In this case it is admitted that the requirement of personal presentation insisted on by the rule was satisfied. But the application was presented to the ministerial officer of the Court (Junior Superintendent) and not to the presiding Officer, the judge. The question is whether presentation to the presiding officer of the court is necessary, or whether presentation to the ministerial officer would suffice. In Chidambaram Chettia r v. Kada r Mohidee n Rowthe r (AIR. 1924 -Madras 901 [2]) in a short judgment, jackson J. of the Madras High Court held that R. 14 of the Civil Rules of practice which permitted presentation of a pauper application to the Sheristada r of the Court was not ultra vire s. It was pointed out that the expression "court" was not defined in the code and that the words "court or such officer as it appoints in this behalf" in 0. 41 R. 1 of the Civil Procedure Code should be a sufficient indication for 0. 33 R. 3 also (Order 4 R. 1 also uses the same language as 0. 41 r. 1 ). Counsel for the respondent argued with some force that the difference in language of 0. 4 R. 1 and 0. 41 R. 1 on the one hand and 0. 33 R. 3 on the other, is significant. He also invited our attention to an earlier decision of the Nagpu r High Court in Jaira m. v. Motila l (AIR 1921 Nagpu r 106) (which is not referred to in the Madras decision ). That decision stated as follows: "the rule mentioned speaks of presentation to the 'court', and there are instances in the Code where that word cannot refer to the judge personally, as for example, 0. 7, R. 10. There can, however, be no doubt that under R. 2 of 0. 33 an application for leave to sue in forma paupari s must be presented to the judge himself, and presentation to the Clerk of Court is not sufficient. The rule speaks only of the Court obviously with the intention of distinguishing the presentation of such an application from that of an ordinary plaint which under 0. 4, R. 1 may be presented "to the Court or such officer as it appoints in this behalf. Further R. 4 of 0. 33 which follows that prescribing personal presentation to the court speaks of the applicant being examined by the 'court', and this can of course only mean the judge. It is however equally clear that it is not necessary for the applicant to place his petition in the actual hands of the judge himself He would naturally and ordinarily give it to some official of the Court, the reader or even a ehapras i , and the Reader would either put him before the judge and his petition in the judge's hands at once or instruct him to come at some more convenient time, a few minutes or hours or even days later. When at that, later time the Reader puts the petition in the judge's hands and the petitioner stands before him, we have undoubtedly a proper presentation of the petition to the judge by the applicant in person, such as is contemplated by 0. 33. R. 2, and if this is done by the Clerk of Court instead of the Reader surely the presentation is more rather than less proper. " With respect, it appears to us that what has been stated in the closing sentence of the quotation supra , seems to a great extent to soften the rigou r of what is stated in the earlier paragraph: