POKHAN GORAIN Vs. BENGALI GORAIN

JUDGEMENT

(1.) This is an application to revise an order of the Subordinate Judge, Second Court, Patna, allowing Bengali Gorain and Baldeo Gorain to continue as paupers a suit instituted by them against the petitioners. The suit was instituted on 13th December 1989, on a court-fee of Rs. 15 as a declaratory suit without a prayer for recovery of possession as the plaintiffs alleged themselves to be in possession.

(2.) The plaintiffs, on 21 December 1931, by a petition said that they did not wish to press their prayer for permanent or temporary injunction in the suit nor the petition for temporary injunction which they had already filed. They also prayed for deletion of relief No. 2 from the plaint (which was a relief for a declaration that the plaintiffs had been illegally dispossessed by the defendants, opposite party from the properties in suit and that they are entitled to recover possession with mesne profits and that possession with mesne profits be given to them after dispossessing the defendants). The plaint, however, was not amended and the Subordinate Judge on 7 February 1940, held that the suit was a suit for a declaration with consequential relief and the plaintiffs were bound to pay ad valorem court-fee. The plaintiff's being called on to pay deficit court-fee took time for the purpose on several dates and on 4 March 1940, presented a petition for leave to continue the suit as a pauper suit which had been commenced in the ordinary form. The Subordinate Judge held an inquiry into the fact of pauperism which he decided holding that the plaintiffs were paupers and he allowed them to continue the suit as such.

(3.) Two points are taken in revision: firstly, that the Court should have rejected the plaint under Order 7, Rule 11 leaving it to the plaintiffs to present a fresh application for leave to sue as paupers; that application to be in the form laid down in Order 33, Rule 2.