ABDUL WAKIL KHAN Vs. BIBI TALIMUNNISSA

JUDGEMENT

(1.) This is an application in revision against an order of the learned Subordinate Judge of Motihari, dated 23rd April 1919, allowing an application of the opposite party to sue in forma pauperia. The relevant facts are the following. On 17th January 1949, an application under Order 33, Rule l, Civil P. C., was filed. It is stated by the learned Subordinate Judge that the applicant was examined when she presented the application for permission to sue in forma pauperis. After such examination, the Subordinate Judge was presumably satisfied that the prohibitions mentioned in Rule 5 of Order 33 did not apply. It was accordingly ordered that notice should issue to the opposite party and the Government pleader. The date fixed was 5th February 1949. On that date, the opposite party before the learned Subordinate Judge and petitioner before us, appeared and asked for time to file an objection. Such objection was filed on 2nd April 1949. The question of an enquiry into the alleged pauperism then arose, and on behalf of the applicant for permission to sue in forma pauperis, it was prayed that a commission should issue to examine the applicant who was a pardanashin lady. A commission was ordered to be issued on 4th April 1949, and a pleader named Mr. Indubhusan Banerji was appointed commissioner to take the evidence of the lady. On 6th April 1949, this pleader commissioner obtained the consent of both parties to the examination of the lady at hen village home on 18th April 1949. For some reason or other, the learned pleader for the present petitioner changed his mind, and thought that the date would not suit him, and asked for a postponement. The pleader commissioner fixed 19th April for the examination of the lady. To that date also, the pleader for the present petitioner did not agree, and the matter was heard by the learned Subordinate Judge on that date, who said that the objection made by the present petitioner was frivolous, and directed the pleader commissioner to take the evidence of the lady on that date. The lady was examined on commission, and subsequently certain other witnesses on behalf of both parties were examined on the question of pauperism. On a consideration of that evidence the learned Subordinate Judge came to the finding that the applicant before him was a pauper, and accordingly allowed her to sue in forma pauperis.

(2.) The objection taken before us is two fold, Firstly, it is contended that the present petitioner was not given an opportunity of cross-examining the lady. Secondly, it is contended that if such an opportunity were given, the petitioner would have been in a position to elicit statements from her which would have shown that she had no cause of action for the claim of dower which she had made. As to the first contention, it seems clear to us that the petitioner had an opportunity of cross-examining the lady, but his pleader failed to avail himself of that opportunity. The order for the appointment of a pleader commissioner to examine the lady was passed on 4th April 1949, and on 6th April 1949, the pleader commissioner obtained the consent of both parties to the examination of the lady on 18th April 1949. The arrangement was that a conveyance would be obtained on behalf of the lady for taking the pleader commissioner and other persons to the locality. Subsequently, the pleader of the present petitioner changed his mind. The matter was then heard in Court, and the learned Subordinator Judge thought that the objection raised by the pleader of the present petitioner was frivolous. In these circumstances, it cannot be reasonably said that the petitioner had no opportunity of cross-examining the lady.

(3.) The second contention is, I think, based on a misconception regarding the scope of the different provisions of Order 33. Order 33, Rule 1 states that subject to the other provisions of the order, any suit may be instituted by a pauper. The explanation to the rule states who is a pauper. Rule 2 states what an application for permission to sue as a pauper shall contain. Rule 3 relates to the presentation of the application. Then comes Rule 4 which is important for our purpose. That rule states that where the application is in proper form and duly presented, the Court may, if it thinks fit examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant. In other words, the Court can examine the applicant both with regard to the merits of the claim as also the property of the applicant. No question of cross-examination arises at that stage. Then comes Rule 5 which says that the Court shall reject an application for permission to sue as a pauper if, amongst other things, the allegations do not show a cause of action. Obviously, the word 'allegations' there mean the allegations in the plaint as also such allegations as appear from the examination of the applicant made under Rule 4. Rule 6 says that where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day, of which notice is to be given to the opposite party, for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof. In other words, Rule 6 ushers in that stage where an enquiry into pauperism takes place. Rule 7 says that on the date fixed, the Court shall examine the witnesses produced by either party, and may examine the applicant ox his agent. Sub-rule (2) of Rule 7 says that the Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence, if any taken by the Court the applicant is or is not subject to any of the prohibitions specified in Rule 5. It is clear that the evidence given under Rule 6 is confined to the question of pauperism only, though the Court may come to a fresh decision both as to pauperism and as to the prohibitions in Rule 5 after the enquiry under Rule 6. If, therefore, the enquiry under Rule 6 was confined to pauperism only, it was not open to the present petitioner to cross-examine the lady on the merits of her claim at the stage when a commission was issued for her examination. It is not, therefore, open to the present petitioner to gay that if he were allowed to cross-examine the lady, he would have been in a position to elicit some statements which would have shown that she had no cause of action. It is obvious that in this case the learned Subordinate Judge was satisfied that the plaint and the statements made by the lady, when she was examined under Rule 4, showed that she had a subsisting cause of action. Thereafter, notice was issued to the opposite party. The opposite party contested the alleged pauperism, and on the evidence the learned Subordinate Judge was satisfied that the lady was a pauper.