GUPTESHWAR MISSIR Vs. CHATURANAND MISSIR

JUDGEMENT

(1.) The petitioner made an application for leave to sue in forma pauperis. In due course, the defendants appeared after notice and contested the application on the grounds, inter alia, that the plaintiff was a man of means, and could pay the court-fees chargeable on the plaint; that the suit was a champartous one, that the plaintiff had under-valued the property in suit; and that, on a proper valuation of the subject-matter of the suit, it would be beyond the pecuniary jurisdiction of the Court--in this case the Munsif's Court at Buxar. The defendants' pleader asked the Court to decide the preliminary question of jurisdiction in the first instance, before going into the merits of the plaintiff's application for leave to sue as a pauper. The plaintiff's pleader contended that the Court, at that stage, had no jurisdiction to go into that question, and that, after the leave prayed for had been granted, and the plaint registered as a suit, the Court could go into the question as a preliminary issue in the suit after the defendants had filed their written statement, challenging the valuation of the subject-matter of the suit, and the pecuniary jurisdiction of the Court dependent upon that valuation. The learned Munsif, relying upon certain decisions, presently to be noticed, accepted the defendants' contention, and decided to go into the preliminary question of valuation in the first instance. Aggrieved by that determination of the Court below, the plaintiff-applicant has moved this Court in revision.

(2.) The matter came, in the first instance, for hearing before a single Judge of this Court who referred it to be heard by a Division Bench.

(3.) The only question for determination in this case is whether the Court below was entitled to go into the question of valuation of the subject-matter of the suit to determine its pecuniary jurisdiction as a preliminary question before deciding the merits of the application itself. The answer to this question must naturally depend upon the interpretation of the provisions of Order 33, Civil P. C., relating to "Suits by Paupers." It is not disputed in this case that the provisions of Rules 2, 3 and 4 of Order 33 of the Code have been duly complied with. The argument on either side in this case has centred round the provisions of Rules 5 to a of Order 33 of the Code. It may be mentioned, at the outset, that there is no direct decision of this Court bearing on the question in controversy certainly none has been brought to our notice. Order 33, Civil P. C., does not, in terms, make any provision for return of the application for leave to sue as a pauper, in the event of the Court coming to the conclusion that the proposed suit, in connection with which the application for leave had been made, was beyond the pecuniary jurisdiction of the Court; nor, as will presently appear, is there any provision for recording evidence on the question of the true valuation of the property in question. Rule 5 of Order 33 lays down the circumstances in which the Court shall reject the application for permission to sue as a pauper. The only relevant clause of that rule is (d), that is to say, where the allegations in the application do not show a cause of action. Rule 6 provides for reception of evidence on the question of the applicant's pauperism, so that the applicant is entitled to adduce evidence in proof of his pauperism, and the party opposing the application is entitled to adduce evidence to the contrary. Rule 7 provides that, after reception of evidence, as aforesaid, and hearing of argument, the Court has to decide whether the application should be allowed or refused. Rule 8 provides that, in the event of the application for leave to sue as a pauper being granted, it shall be numbered and registered as a plaint in the suit to be proceeded with in the ordinary course, without payment of court-fees on the plaint. Rule 16 provides that, on the application being refused, no fresh application for leave to sue as a pauper in respect of the same right to sue shall be entertained, but that the applicant may institute a suit in the ordinary manner, that is to Bay, on payment of court-fees, provided that costs of the party opposing the application for leave to sue as a pauper must first be paid. It will thus appear that no provision has been made in Order 33, and particularly in Rules 6 and 7, for the reception of evidence on the question of valuation of the property to determine the pecuniary jurisdiction of the Court, if and when that preliminary question is raised in controversy. It will also appear that the rules in Order 33 contemplate either the granting or the rejection of the leave prayed for but not the return of the document which case law has described as of a composite nature comprising an application to sue as a pauper and a plaint. It is only upon the application being granted that the document ripens into a plaint in the suit under Rule 8. So long as the leave prayed for has not been granted, it is not deemed to be a plaint, and, therefore, cannot be returned as such, if the Court were to take the view that it was beyond the pecuniary jurisdiction of the Court. Hence, on a plain reading of the provisions of Order 33, it is clear that the rules therein laid down do not contemplate an enquiry into the valuation of the property in question with a view to determining whether the subject-matter of the dispute was or was not within the pecuniary jurisdiction of the Court.