ASHFAG AHMED Vs. STATE

JUDGEMENT

(1.) The wife sued her former husband as an indigent person claiming return of Mehr. She sought and obtained permission of the Court to sue as an indigent person long back. On the ground that she was not possessed of sufficient means to pay the Court-fee, the Court below granted the wife's application filed under Order 33, Civil Procedure Code. The husband allowed that order of the Court to become final. Now after the suit has been numbered as O.S.39/82 and issues have been framed, the husband filed the present application contending in substance that the earlier orde.r made by the Court permitting the wife to sue him as an indigent person was wrong, because she was even by then possessed of sufficient means to pay the Court fee. That application was rejected by the Court below. Against that, the husband files this Civil Revision Petition.

(2.) I am not inclined to admit the revision petition and prolong the life of this litigation and agency of the parties. Even assuming that all that the petitioner says is correct and that the wife was possessed of sufficient means to pay Court fee, it only means that the earlier order was made wrongly. But I find no jurisdiction in the Court below to set aside the earlier order passed granting permission to the wife on that ground. At best the earlier order can only be described as erroneous. Probably it could have been set aside, in revision. But it was not so set aside. The present application is made under Order 33, Rule 9, Civil Procedure Code. The question is whether such an application can competently be made. Order 33, Rule 9, Civil Procedure Code, reads thus: "The Court may, on the application of the defendant, or of the Government Pleader, of which seven days' clear notice in writing has been given to the plaintiff, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn: a) if he is guilty of vexatious or improper conduct in the course of the suit; b) if it appears that his means are such that he ought not to continue to sue as an indigent person; or c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter."

(3.) A careful reading of the provisions of Order 33, Rule 9 (b), Civil Procedure Code, would make it clear that they cannot be applied to the case on hand. In my opinion, Order 33, Rule 9 (b), Civil Procedure Code, can apply only where the party which was permitted to sue as an indigent person, acquires sufficient means subsequent to the making of the earlier order. The words "ought not to continue to sue" as an indigent person, occurring in Order 33, Rule 9 (b), Civil Procedure Code are significant. They look to the present and not to the past. They presuppose that in the past the order to sue as an indigent person is rightly made. The Court Fees Act treats the liability of the litigant to pay Court fee as inescapable and as an eternal fate of the litigant. During the period of trial it keeps a continuous and close watch on any fresh acquisitions of new means by the plaintiff subsequent to the making of the earlier order by the Court so as to be able to collect Court fee from him which he had escaped paying earlier. If the plaintiff acquires subsequently enough means, Order 33, Rule 9, Civil Procedure Code says that he should pay Court fee by withdrawing the benefit of the earlier permission granted by the Court. This is to be achieved by withdrawing the earlier permission and not by setting aside the earlier order. The language of withdrawal of an earlier permission does not refer to its original invalidity. I am therefore of the opinion that for the application of Order 33, Rule 9 (b) of the Code of Civil Procedure, there must be a change in the financial circumstances of the litigant bringing new means to the party after making of the original order by the Court. In other words, the Order under Order 33, Rule 9 (b), Civil Procedure Code proceeds on the assumption that earlier order is rightly made, but cannot be continued now. After the Court makes an order permitting a party to sue as an indigent person, that order can only be set aside or withdrawn by the same Court under Order 33, Rule 9, Civil Procedure Code, for the three reasons mentioned therein. The earlier order can be withdrawn under Order 33, Rule 9, Civil Procedure Code for three reasons, a) if it is found that the party is guilty of vexatious or improper conduct in the course of the suit, b) or if it appears to the Court that the means of the party are such that he ought not to continue to sue as an indigent person, or c) if the party has entered into any agreement with reference to the subject matter of the suit under which any other person has obtained an interest in such subject matter. It may be noted that each one of these grounds refer to the subsequent events. With the past it has no concern. It lets the byegones to be byegones. In other words, Order 33, Rule 9, Civil Procedure Code cannot be used as a camouflaged remedy for review.