ANANGABHUSAN Vs. GHANASHYAM PATRO

JUDGEMENT

(1.) THIS is revn, directed against an order passed by the Subordinate Judge of Puri dispaupering the pltf. under O. 33, R. 9, Civil P. C. The pltf. admittedly is a member of a Hindu Mitakshara Joint family and his father is one of the defts. in the suit. The suit is for setting aside certain alienations, made by his father and for recovery of the properties so alienated. The attack on those alienations is based upon immorality and illegality of the transactions. The pltf. applied for leave to sue in forma pauparia. Of his appln. due notices were given to the Crown as well as, to the defts. opposite party. They filed their objections challenging the plea of pauperism but none of the contesting parties appeared at the date when the matter was heard by the Ct. The Ct. purporting to act under O. 33, R. 7 granted the pltf. leave to sue as a pauper on which his appln. for leave was registered as a suit and was to proceed, as such, in the ordinary way except that he should be exempted from paying any further Ct. -f. on his appln?. to be filed in course of the suit. At a later stage, the opp. party filed an appln. under R. 9 (b) of the Order alleging that the pltfs means were such that he ought not to be continued to sue as a pauper. The Ct. below, without making any enquiry as to whether the appcts. before him ware prevented, by any sufficient cause, from appearing at the date of hearing of the pltfs. appln. for leave to sue as a pauper, and without making any sort of enquiry whatsoever which would, as a matter of principle, entitle the appcts. to reopen the order passed under R. 7, entertained the appln. and enquired into its merits. After such enquiry, be has believed the opp. partys case and has come to the conclusion that the pltf. is possessed of means, such as would enable him to pay the requisite C. -f. and that, therefore, he has no right to continue to sue as a pauper.

(2.) THE pltf. has come up in revn. against this order and his point is that the Ct. had no jurisdiction to entertain the appln. so far as it did not disclose that the means referred to were such means as came into the pltfs possession later than the disposal of his leave appln. under R. 7; in other words, the contention is that the matter could have been urged before the Ct. at the stage when the leave was granted and could not be the subject -matter of discussion at a later stage. This contention is based on the principle that any order, either interlocutory or final in its nature, passed in presence of the parties, should be taken as closing the controversy once for all for the purposes of the proceedings or the suit in which it is passed and so far as it goes. The order may or may not be such on which a plea of res judicata can be based, but in order to avoid multiplicity of proceedings some sort of finality, limited with in the scope of the suit or the proceedings in which it is passed, has to be attributed to it. In the present case, the means that were alleged to have been in pltfs. possession were the family properties which admittedly were not acquired subsequent to either his filing the appn to leave or to the registration of that appln. as a suit. Reliance, in support of the order, is placed upon the terms of R. 9 which, so far as material for purpose of this revn. read:

(3.) MR . Mohanty contrasts the provisions of R. 9 with the one appearing in the same Order of the Code giving finality to an order disallowing leave to sue as pauper. That is because the pltf.s liability for c. -f. is a continuing liability and he can be ordered to pay whenever he comes by means to pay. On the other hand, if he had means enough to pay the requisite c. -fs. at the commencement of the suit, he should be liable to pay, notwithstanding subsequent change of his financial position reducing him to poverty.