TEJKUMAR Vs. SUBHASHCHANDRA

JUDGEMENT

(1.) The appellant had filed an application under Order 33, Rule 1, Civil Procedure Code seeking permission to sue the respondents in the Court of the 7th Additional Judge to the Court of the District Judge, Indore. It was alleged in the application that the suit property was ancestral property of which the appellant was entitled to equal share with his father Trilokchand-defendant No. 1 (now dead). According to the applicant, the suit property was sold only for Rs. 15,000/- without a legal necessity. There were old tenants in the said property on a rent of Rs. 100/- per month. The applicant valued the suit at Rs. 15,000/- for the purpose of a declaration of the sale deed as null and void, the valuation of the suit for possession was Rs. 1680/- and the mesne profits were claimed at the rate of Rs. 1200/- per month amounting to Rs. 36,000/- for a period between 8-6-1977 and 7-12-1979. As such, the total valuation of the suit, according to the applicant, was Rs. 51,300/-. On notice to the defendants, the respondent No. 6 contested the application of the applicant. After holding an enquiry pertaining to the right of the applicant to sue as an indigent person, the trial Court held that the suit has been over-valued. Therefore, a direction was issued by the learned trial Court vide its order dated 23-1-1981 in case No. 13-A of 1979 to return the application for presentation before the proper Court of competent jurisdiction.

(2.) Aggrieved by the aforesaid order, the applicant has filed this appeal which was heard by a learned single Judge of this Court. The learned single Judge after hearing the arguments of both the parties was of the opinion that the questions raised in the case involve points of difficulty and importance including the reconsideration of the case of Channulal Semi v. Shama Ramcharan, AIR 1955 Nag 259. Therefore, the learned Judge formulated two questions and directed the matter to be placed before Hon'ble the Chief Justice for constituting a Full Bench for answering the questions and opinion thereon. Consequently, the following two questions have been referred for answer and opinion of this Bench :-

(3.) At the outset it may be mentioned that the order of the learned Additional District Judge has not been passed under Order 33, Rule 5, Civil Procedure Code but it is an order under Order 7 Rule 10, C.P.C. Therefore, we proceed to examine the questions referred to us in relation to the right of the Court to return the plaint while deciding the question of permission to sue as an indigent person. Order 33 Rule 5, C.P.C. provides for rejection of an application for permission to sue as an indigent person, if the application seeking the permission to sue as an indigent person attracts any of the clauses (a) to (g) of Rule 5. It is not in dispute that no provision has been made in the aforesaid rule for returning the plaint for presentation to a Court of competent jurisdiction, in case the Court finds that the suit has been over-valued or under-valued and the Court has no pecuniary jurisdiction to decide the suit. This leads us to a question whether an application to sue as an indigent person under Order 33 Rule 1, C.P.C. has to be treated as the plaint. In our view, the interpretation that the application to sue as an indigent person is a plaint has held the field for sufficiently long time in this State. In Channulal Semi v. Shama Ramcharan (AIR 1955 Nag 259) (supra), the Division Bench of the Nagpur High Court answering a reference made by a learned single Judge had held that the purport of Order 33 is to enable a pauper to bring a suit without payment of court-fee subject to his establishing that he is a pauper. If he is able to establish his claim of being an indigent person, then the Court shall allow to continue that suit and the application to sue in forma pauperis shall be deemed to be a plaint presented on the date on which the application was made. However, if he fails to establish his pauperism, then he is relegated to the same position in which an ordinary litigant would be as if he brought his suit on a plaint insufficiently stamped. The Division Bench, therefore, was of the opinion that during the time the pauperism is being enquired into there is a plaint but insufficiently stamped. The Division Bench of the Nagpur High Court while deciding this question had followed the decision of their Lordships of the Privy Council reported in (1879) ILR 2 All 241 (PC) (Stuart Skinner v. William Orde). Differing with the view expressed by the Patna High Court in Gupteshwar v. Chaturanand, AIR 1950 Pat 309 wherein it was held that while the question of pauperism was being considered, the Court had no right to consider any other question including its own jurisdiction to try the case. The Nagpur High Court has held as under : -