KISAN SAKHARAM MARATHE Vs. SAHAJAT SINGH DEVIDAYAL SINGH

JUDGEMENT

(1.) THIS is an application for revision against an order rejecting the applicant's application to sue in forma pauperis. The procedure laid down for such applications is given in Order 33, Civil P.C. After presentation of an application to sue in forma pauperis the Court is entitled to examine the applicant and after examining the applicant the Court is given power under Rule 5 of Order 33 to reject the application where it is not properly framed, where the applicant is not a pauper, where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or where his allegations do not show a cause of action, or where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter. If the Court does not reject the application for any of the reasons given in Rule 5, then Rule 6 enacts that it shall fix a day 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. Rule 7 lays down that on the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses, if any, produced by either party, and may examine the applicant or his agent and shall make a memorandum of the substance of their evidence. Clause (2) of Rule 7 enacts 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 taken by the Court, the applicant is or is not subject to any of the prohibitions specified in Rule 5, and Clause (3) lays down that the Court shall then either allow or refuse to allow the applicant to sue as a pauper.

(2.) IN this particular case it appears from the order-sheets that the Court examined the applicant and thought prima facie that there was no objection which would enable it to reject the application under Rule 5 of Order 33, and thereafter issued notice to the other side and fixed the case on a particular date for receiving evidence regarding pauperism. It appears that on the date fixed for hearing, the other side filed a statement stating that the plaint did not disclose any cause of action, that the claim was not tenable, that it was barred by time and that it was a mala fide suit brought by the applicant with a view to harass the defendant. The Court without hearing any evidence regarding pauperism proceeded to decide the point regarding the subsisting nature of the cause of action and the tenability of the suit, and came to the conclusion that the applicant was not entitled to sue for possession of a house without setting aside a sale deed executed by his predecessor-in-title in favour of one Bansi, and also held that a suit for the moveables was barred by time on the allegation in the plaint itself. Having come to this conclusion, the Court dismissed the application for permission to sue in forma pauperis.

(3.) IN this view of the case the decision of the Court below that the plaintiff could not sue for possession of the house without setting aside the deed of sale in favour of Bansi does not appear to be correct. The Court has further found on the allegations in the plaint that the plaintiff's suit for possession of moveable property was time-barred. Prima facie, it would appear to be so, but the plaintiff realizing that there was a mistake in the plaint in stating the cause of action for possession of the moveable property, immediately applied for amendment of the plaint. The Court however did not go into the question of the amendment as prayed for in the application, but characterized the attempt of the plaintiff as mala fide and made that a ground for dismissing the application to sue in forma pauperis. This does not seem to be justified by the procedure laid down in Order 33. As a matter of fact, there is authority for the proposition that it is not now necessary under the amended Rule 5 of Order 33 to see whether the cause of action is barred or not. If the application discloses a cause of action, it is sufficient for the Court to proceed further with the application to sue in forma pauperis; the Court need not go into the question of limitation: Bhajja v. Muhammad Said Khan (1932) 19 AIR All 543 is an authority for this proposition.