S MUTHU KRISHNA NAICKER Vs. T VENKATA THATHACHARIAR

JUDGEMENT

(1.) The points that arise in this civil revision petn. are ; (1) That the pauper application has not been pcoperly presented ; & (2) that there is no averment in the proposed plaint that the petnr. was willing & ready to tender the money to re-purchase the property. Both the pointa have been considered by the learned Subordinate Judge & overlooking the objections he has granted leave to the pauper to present his petn. in in forma pauperis & directed that the petn. should be registered as a suit.

(2.) Counsel for the petnr. before me contends that the learned Subordinate Judge was not right in having overlooked the mandatory provisions of Order 33, Rule 3, C. P. C., which says that notwithstanding anything contained in these rules, the appln. shall be presented to the Ct. by the appct. in person, unless he is exempted from appearing in Ct., in which case the appln. may ba presented by an authorised agent who can answer all material questions relating to the appln. & who may be examined in the same manner as the party represented by him might have been examined had such party attended in person. It is common ground that the pauper in this petn. is (sic) been exempted either by the State Govt. or by the H. C. which is empowered to grant exemption under Sub-clause (2) of Rule 3 of Order 33, C.P.C., which reads as follows :

(3.) Even granting that the Ct. was right in having exempted the pauper from appearing in Gt. on his appln. for such exemption, the point still arises as to whether the pauper has complied with the requirement of law that when he sues for specific performance of a contract he should aver & prove his continuous readiness & willingness, from the date of the contract to the time of the hearing of the suit, to perform the contract. In the petn. presented by him there is actually no such averment. Far from that, the very fact that he is proposing to sue as a pauper precludes him from making any such averment & even if any such averment is to be made in a pauper petn., it will by itself be a ground to dispauper the appct., & consequently there can be no substance in any such averment. In Ardeshir H. Mama, v. Flora Sassoon, 52 Bom. 597 at p. 619: (A.I.R. (15) 1928 P. C. 208), the Judicial Committee has specifically laid down the principle of law that is to govern such cases where specific performance of contracts is claimed. This casecomes within the scope of that decision & in view of of that decision, & in the absence of any averment & any capacity on the part of the paaper to tender the purchase price, I cannot but hold that the pauper petn. cannot be admitted.