BAI CHANDAN Vs. CHHOTALAL JEKISONDAS

JUDGEMENT

(1.) The petitioner filed an application in the Court of the Third Joint Subordinate Judge at Ahmedabad for leave to sue in forma pauperis. The learned Judge issued a notice to the opponent and also to the Government Pleader. The opponent appeared and put in a written statment. The learned Judge thereupon examined the plaintiff, one witness Exhibit 22, and the opponent. Full arguments were heard and the learned Judge held that the petitioner was a pauper, but on the merits she had no good subsisting cause of action and rejected the petition. The petitioner applies in revision against that order.

(2.) The learned advocate for the opponent has raised a preliminary objection, In my opinion the preliminary objection must be overruled, and that, in a proper case, a revisional application will lie against an order rejecting the petitioner's application for leave to sue in forma pauperis.

(3.) In the first place, it is necessary to understand the scheme of Order XXXIII of the Civil Procedure Code which relates to suits by paupers. Rule 1 defines a "pauper." Rule 2 deals with the contents of an application by a pauper. Rule 3 lays down how the application is to be presented. Rule 4 is important, and says that where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant or his agent, where the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant. Rule 5 is also important, and enables the Court to reject an application for permission to sue as a pauper in certain cases, two of which are material in this appeal: (b) where the applicant is not a pauper, and (d) where his allegations do not show a cause of action. Now it is clear from this that the Court has jurisdiction to examine the applicant on two points : (1) as to his alleged pauperism, and (2) on the merits of his claim ; and if the Court concludes that the definition in Rule 1 is not satisfied, or that there are no merits in the claim, it has jurisdiction to reject the application. It is obvious that the only materials, at this stage, on which the Court can proceed, in coming to the conclusion that there are no merits in the applicant's claim, are the application itself under Rule 4, and the evidence of the applicant or his agent. The term " allegations " in Rule 5(d) can only refer to the application and the evidence, if any, of the applicant himself allowed by Rule 4. Then comes Rule 6, and under it if at that stage the application is not rejected under Rule 5, the Court has to 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 either by the opponent or by the Government, to both of whom a clear ten days notice has to be given under this rule. Rule 7 prescribes the procedure to be followed on the day fixed under Rule 6. On that day the Court is bound to examine the witnesses, if any, produced by either party and may examine the applicant, and the Court is bound to make a memorandum of the substance of the evidence led before it. It is clear that in addition to the examination of the applicant under Rule 4 the Court can examine him again under Rule 7. Now, there is a current of decisions which lay down that the evidence which the Court has to take under Rule 7 read with Rule 6 is the evidence only on the ques-of pauperism. See Shauran Bibi V/s. Abdus Samad (1923) I.L.R. 45 All, 548, Jogendra Narayan Roy V/s. Durga Charan Guha Thakurta (1918) I.L.R. 46 Cal. 651, Shaikh Muhammad Nasrullah V/s. Shaikh Muhammad Shukurullah (1923) I.L.R. 3 Pat. 275, and Ma Shopjambi V/s. Muharak Ali (1929) I.L.R. 7 Ran. 361.