JATINDRA NATH GHOSE Vs. SOURINDRA NATH MITRA

JUDGEMENT

(1.) This is a Rule calling upon the opposite party to show cause why the order of the Subordinate Judge of Barisal in connection with an application for leave to sue as a pauper should not be set aside. The application for leave to sue as a pauper was made by one Surendra Nath Ghose and the petitioners were some of the opposite parties in that case, On the death of Surendra the petitioners inherited the share of the deceased and they applied for being substituted in his place. In their application they stated that they also were paupers unable to pay the Court-fee payable for the suit, and they prayed that they might be substituted in the place of the deceased and also that they might be allowed to proceed with the case as paupers. This was disallowed by the Court below. So far as it was an application for substitution in place of the diseased, we do not think that the petitioners could maintain such an application. The right to make an application to sue as a pauper is a personal right and did not survive to the petitioners, though there is nothing to prevent the petitioners from making a fresh application for being allowed to sue as paupers.

(2.) It is contended before us that the petitioners had in substance applied for leave to sue as paupers, though not in form. The Court below, however, appears to have understood it as an application for substitution. It does not appear that the petitioners ever asked the Court below to treat it as an application for leave to sue as paupers. The learned Vakil for the opposite party also pointed out that the application was not in accordance with the form prescribed by Rule 2 of Order XXXIII and that in any case the Court below had not been asked to consider the question which has been raised before us. In these circumstances, we do not think we should interfere with the order of the Court below. But our order or the order passed by the Court below will not prevent the petitioners from moving that Court to consider whether the application made by them on the 15 May 1920 should or should not be considered as an application under Rule 2 of Order XXXIII or from making such further application as the petitioners may be advised to make under Rule 2 of Order XXXIII or from asking that Court to consider whether the application san be entertained having regard to Section 5 of the Limitation Act.

(3.) The petitioners must pay the opposite party their costs of this Rule, hearing fee one gold mohur.