KANAK DAS Vs. RAM LAKHAN SHAW

JUDGEMENT

(1.) This Rule was obtained by the defendants and it is directed against an order of the learned Chief Judge, Small Causes Court, Calcutta, allowing the plaintiff-opposite party's application praying for permission to sue as a pauper under Section 74 of the Provincial Small Cause Courts Act and Rule 1 of Order 33 of the Small Causes Court's Manual.

(2.) The plaintiff took a tenancy from the defendants of one Almirah shop on the road side window of the northern wall of the premises No. 53, Gray Street, Calcutta, under an agreement dated 27-9-63 at a rent of Rs. 45/- per month according to English Calendar. The plaintiff used to do repairing works of fountain pens, spectacles and cigarette lighters etc. In the month of February, 1966, the plaintiff left for Varanashi for meeting his relations there, keeping the shop under Jock and key with the articles of his business of the value of Rs. 400/-. On coming back to Calcutta on 3-4-66, he found that the Almirah shop was removed with the Almirah and the articles contained therein. The shop space had been converted into a room. Thereafter the matter was taken up by the police, goods valued Rs. 387/- were recovered from the possession of the defendants but the rest of the goods could not be traced. A criminal case was started against the petitioner No. 2, the son of the petitioner No. 1, who was found guilty of charges under Sections 454/380, Indian Penal Code and sentenced to a fine of Rs. 100/- by a Magistrate on 26-12-66. The cause of action of the suit arose on 26-2-66 when conversion of the plaintiff's goods by the petitioners was established by the judgment of the Criminal Court. The plaintiff brought the suit against the defendants for recovery of Rs. 3613/- but on account of his poor circumstances he was unable to pay court-fees amounting to Rs. 315/- payable on the value of the suit. Besides the property in suit, the plaintiff did not possess any movable and immovable assets except some implements for his business and wearing clothes of the estimated value of Rs. 80/-. The petitioners resisted the plaintiff opposite party's said application by filing objection. They also asked particulars of the self-acquired and joint property of the plaintiff at his native village. Thereupon, the plaintiff filed an affidavit stating that he had no property either joint or self-acquired at his native village. The learned Chief Judge, Small Causes Court at Calcutta, allowed the plaintiff-opposite party's application under Section 74 of the Presidency Small Cause Courts Act and permitted him to sue as a "pauper". The defendants being aggrieved against the said order, moved this Court and obtained the present Rule.

(3.) Mr. Mitter, appearing on behalf of the petitioners, in support of the Rule, contended that the learned Judge acted illegally and with material irregularity in exercise of his jurisdiction in allowing the opposite party's application praying for permission to sue as a "pauper", ignoring the plaintiff's own statement that he had recovered possession of articles worth Rupees 387/-. Under the provisions of Order 33, Rule 1, Civil Procedure Code, a person is a "pauper" when he is not entitled to property worth Rs. 100/-. Mr. Mitter further contended that the word "pauper" as used in Section 74 of the Presidency Small Cause Courts Act has the same meaning as defined in Order 33, Rule 1, Civil Procedure Code, inasmuch as in the 5th Schedule added to the Presidency Small Cause Courts Act by Bengal Act VIII of 1934, the word "pauper" is used. In support of his contentions Mr. Mitter referred to a decision of the Supreme Court, N. B. Jeejeebhoy v. Asst. Collector, Thana.