KUNDAN LAL Vs. SURENDRA NATH

JUDGEMENT

(1.) A suit for partition was decreed. The defendants desired to file an appeal. They filed an application for permission to file the appeal as an indigent person under Order 44, C. P. C. It appears that the application for permission was not properly verified. The plaintiff-applicant raised an objection that the Court had no jurisdiction to permit the defendants to rectify the defect. The Court overruled this objection and allowed the defendants to verify the application. He then fixed a date for enquiry into pauperism of the defendants. Aggrieved by this order the plaintiff has come to this Court in revision. Learned counsel submits that the amendment introduced by the Allahabad High Court to Rule 5 of Order 33, C. P. C., is no longer applicable and may be deemed to have been repealed by Section 97 of Central Amending Act of 1976.

(2.) Order 33, Rule 2, C. P. C. provides that an application for permission to sue as an indigent person, shall be signed and verified in the manner prescribed for the signing and verification, of pleadings. Rule 5 of Order 33, C. P. C. says that the Court shall reject an application for permission to sue as an indigent person where it is not framed and presented in the manner prescribed by Rules 2 and 3. Since the application had not been verified it was liable to be rejected under Clause (a) to Rule 5.

(3.) The Allahabad High Court on 15-4-1933 added the following explanation at the end of Rule 5 :-