S E ORDE Vs. T C DEACON

JUDGEMENT

(1.) This is a revision against an order passed by the learned first Civil Judge of Meerut rejecting an application for leave to sue in forma pauperis. An application was filed as required by Order 33 Rule 2, Civil P. C. The application contained the particulars required in regard to plaints. A schedule of the property belonging to the applicant was also given & the estimated value thereof & the document was signed & verified by the applicant. It was mentioned in the application that the applicant, was a pauper & was unable to pay the court-fees. A second application which was wholly unnecessary was attached to the application mentioned above & that has given rise to an objection by the opposite party that the second application was the real application under Order 33 & was defective as it was not in accordance with the provisions of Order 33, Rule 2, Civil P. C. We have looked into the first application which has been called "the plaint" & are satisfied that the document fulfils the requirements of Order 33, Rule 2, Civil P. C. & the second application was redundant & not necessary.

(2.) The applicant is not possessed of any property. The suit is for specific performance of a contract of re-sale for Rs. 16,600. When she was asked where she would get the money from to re-buy the property, which had been sold in execution of a decree against her, she stated that her Son in-law & daughter would help her with money: Relying on a ruling of the Patna High Court in the case of Jaikishun Dass v. Ram Narain Dass, A. I. R. (26) 1989 Pat. 385, the lower Ct. came to the conclusion that the application must be rejected & permission to sue in forma pauperis should not be granted. We have looked into the decision mentioned above & with great respect to the learned Judges we do not find it possible to follow that decision. The learned Chief Justice in that case was of the opinion that Order 33, Rule 5, Civil P. C., was not exhaustive & "merely states a series of circumstances any one of which if proved compel the Court to reject the application." Order 33, Rule 5, Civil P.C., is as follows:

(3.) Apart from that, Clause (e) of Rule 5 provides that where the applicant has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter, the Court shall reject his application. To hold that in a case where the applicant has entered into no such agreement & has created no interest, in favour of a third party in the subject-matter in the suit the Court is still competent to dismiss the application would amount to making the provisions of this clause nugatory.