BURJORJI PESTONJI BARIA Vs. MURLIDHAR SIDHGOPAL AVASTI

JUDGEMENT

(1.) THIS is an appeal against an order of Mr. Justice Kania made in Chambers allowing the respondent to sue the appellant in forma pauperis, and a preliminary objection is taken that the judgment is not a judgment within Clause 15 of the Letters Patent, and that no appeal lies. The Prothonotary, to whom application under Order XXXIII was made in the first instance by virtue of Rule 89 of the High Court Rules, rejected the application for leave to sue as a pauper, but his order was set aside by the learned Judge in Chambers. There seems to be some question as to the correct procedure to be adopted on these pauper applications, and we will deal with that matter before considering the preliminary objection.

(2.) THE scheme of Order XXXIII, Civil Procedure Code, which deals with pauper applications, seems reasonably clear, Rule 2 provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits, and it has to be signed and verified in the manner prescribed for the signing and verification of pleadings. Rule 4 provides that where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant. THEn under Rule 5 the Court shall reject an application for permission to sue as a pauper on the various grounds specified, one being that the applicant is not a pauper, and another being that his allegations do not show a cause of action. THE other grounds are not material. Now, up to that point it is clear that the Court is dealing with the matter ex parte. THE Court gets an application which is in proper form under Rule 2, and it can then examine the applicant or his agent regarding both the merits of the claim and the property of the applicant, and it can ex parte reject the application, if it is not satisfied upon those two points, amongst others. THEn Rule 6 provides that where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof. Under that rule the only evidence which can be adduced is on the issue of pauperism, and evidence as to the merits of the case is not allowed. THEn Rule 7 provides that on the day so fixed, or so soon thereafter as may be convenient, the Court shall examine the witnesses produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. Sub-rule (2) provides that the Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence taken by the Court, the applicant is or is not subject to any of the prohibitions specified in Rule 5 . THEn under Sub-rule (5) the Court either allows or refuses the application to sue as a pauper. So that when acting under Rule 7 the Court has before it the statement made by the applicant in his application and any evidence which he has given on being called upon by the Court under Rule 4, which may deal with pauperism or merits, and it also has the evidence given on the notice under Rule 6, which can deal only with pauperism, that is, with the means of the applicant, and on that material it is open to the opponent to argue that the applicant ought not to be given leave to sue as a pauper. But the opponent is not himself entitled to call any evidence, or to be present when any evidence is heard, dealing with merits.

(3.) THE appeal must be dismissed.