MADAN MOHAN SAMAL Vs. LABANI BEWA AND ORS.

JUDGEMENT

(1.) OPP . party No. 1 filed an application under Order 33,Code of Civil Procedure for permission to institute a suit in forma pauperies against the present Petitioner and 3 others for cancellation of a registered sale deed dated 22 -1 -1965 executed by her husband and for recovery of possession. That was registered as Misc. Case No. 175 of 1968. The said Misc. Case was contested by the present Petitioner and after due enquiry and hearing as contemplated under Order 33, Rule 7,Code of Civil Procedure it was rejected by an order dated 30.4.1969 and opp. party No. 1 was directed to pay the requisite Court fee on the plaint, Opp. party No. 1 instead of paying Court fee as directed filed a fresh application under Order 33 Rule I, Code of Civil Procedure on 15.5.1969 for permission to sue in forma pauper is in respect of the same cause of action against the same parties. Among other things, the application was resisted on the ground that Order 33 Rule 15,Code of Civil Procedure is a bar to the maintainability of the second application. For opp. party No. 1, it was contended that the previous application having been rejected under Order 33 Rule 5, Code of Civil Procedure for noncompliance with the requirements of Rules 2 and 3 and not on merits under Rule 7, the bar of Rule 15 will not apply. The learned subordinate Judge accepted this contention of opp. party No. 1 and held that the present application is not barred under Order 23 Rule 15, Code of Civil Procedure, besides holding on the evidence that opp. party No. 1 had not the means to pay the requisite Court fee. The present civil revision is directed against the aforementioned order.

(2.) THE only point for consideration in this revision is whether in the circumstances Order 33 Rule 15, Code of Civil Procedure will be a bar. It is not disputed that if the order in the previous misc. Case is one under Order 33 Rule 5, Code of Civil Procedure, Rule 15 will not be attracted. On the other hand, if the order on The previous ''application is construed as one under Order 33 Rule 7(3) Code of Civil Procedure, Rule 15 will be clearly a bar to the entertainment of the second application.

(3.) FOR a proper appreciation of the respective contentions, it is necessary to refer to the scheme and sequence of the relevant provisions contained in Order 33,Code of Civil Procedure Rule 1 permits institution of suits in forma pauper is and defines the expression 'pauper '. Rule 2 provides for the contents of an application for permission to sue in forma pauper is. Rule 3 provides for, the manner of presentation of an application in Court and under Rule 4, where the application is in proper from and duly presented, the Court may examine the Applicant regarding the merits of the claim and his properties. Rule 5 empowers the Court to summarily reject an application where it is not framed or presented in the manner prescribed under Rules 2 and 3 or on other grounds mentioned in the different clauses there under. Rule 6 provides that if the Court does not summarily reject it under Rule 5, it shall fix a date for receiving evidence in proof or disproof of pauperism that may be adduced and giving notice to the opp. party and the Government pleader. Then Rule 7 provides that after making a memorandum of the substance of the evidence, if any, that may be adduced and hearing arguments, if any, that may be advanced on the question whether the Applicant is subject to any of the prohibitions in Rule 5, the Court shall either ''allow or refuse to allow '' the application to sue as a pauper. Thus, from the sequence in which the provisions occur, it is patent that the bar of Rule 15 applies only where the Court refuses to allow an application under Rule 7(3) and not where it has summarily rejected an application under Rule 5.