RAJ NARAIN SAXENA Vs. BHIM SEN

JUDGEMENT

(1.) THIS revision has been referred to a Full Bench by our brothers Oak and Seth who were of opinion that a decision of a Division Bench of this Court in Nur Muhammad v. Jamil Ahmad, AIR 1919 All 213, requires reconsideration.

(2.) THERE is no controversy about the facts in the case. Opposite Party No. 1, who being the contesting opposite party will be referred to as the opposite party in this judgment, filed against the applicant a suit as a pauper under Order 33 of the Code of Civil Procedure by applying for permission to sue as a pauper in the Court of a Munsif. The application was apparently in proper form and was presented by the opposite party in person. Under Rule 1 of Order 33 any suit may be instituted by a pauper and under Rule 2 every application for permission to sue as a pauper must contain the particulars required in regard to plaints in suits and under Rule 3 it must be presented "to the Court" by the applicant in person. Where an application is in proper form and duly presented the Court is authorised to examine the applicant regarding the merits of his claim of his pauperism, vide Rule 4, but if it is not framed or presented as laid down in Rules 2 and 3 or the applicant is found to be not a pauper or (d) "where his allegations do not show a cause of action" or he has done certain acts, the application must be rejected, vide Rule 5. This Court has added an explanation to this rule to the effect "an application shall not be rejected under Clause (d) merely on the ground that the proposed suit appears to be barred by any law." Where it is not rejected under this provision the Court must fix a date for receiving the applicant's evidence in proof of his pauperism and evidence which may be adduced in disproof thereof. On the day so fixed "the Court shall examine the witnesses produced by either party...... and shall also hear any argument......and......then either allow or refuse to allow the applicant to sue as a pauper", vide Rule 7. Where the application is granted "it shall be numbered and registered, and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner", vide Rule 8. Rule 15 lays down that an order refusing to allow an applicant to sue as a pauper bars a subsequent application of the like nature but he is at liberty to institute a suit in the ordinary manner provided he pays the costs of the State Government and the opposite party. The opposite party valued the claim at Rs. 3,350 and alleged in his application that he was not possessed of sufficient means to pay the court-fee payable on this valuation. The learned Munsif did not reject the application under Rule 5, and fixed a date for receiving evidence and gave notice to the applicant. The applicant appeared before the learned Munsif on the date fixed and filed an objection contending that the opposite party was not a pauper, that he had undervalued the relief, that the suit was beyond the pecuniary jurisdiction of the learned Munsif because the real value of the relief was more than Rs. 5,000 and that the jurisdiction of the learned Munsif was barred by the Zamindari Abolition and Land Reforms Act. The learned Munsif refused to entertain the objection about his jurisdiction; he held, relying upon AIR 1919 All 213 (supra) and other cases, that he had no jurisdiction to go into those questions while considering whether the opposite party should be permitted to sue as a pauper or not. He held that the opposite party was a pauper and permitted him to sue as such and registered the application as a plaint.

(3.) ACCORDING to the explanation, a suit is instituted in an ordinary ease when the plaint is presented to the proper officer and in the case of a pauper, when his application for permission to sue as a pauper is made. The rules regarding plaints are contained in Order 7 of the Code of Civil Procedure. A plaint must contain, inter alia, the facts constituting the cause of action and when it arose, the fact showing that the Court has jurisdiction, the relief and a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees.