HAFIZ MAHAMMAD FATEH NASIB Vs. AMINUDDIN

JUDGEMENT

(1.) This Rule is directed against an order made by the learned First Subordinate Judge of the 24-Parganas on 16 August 1932. whereby he rejected an application of the petitioner plaintiff, for permission to continue a suit instituted by him in the ordinary way, in forma pauperis. What happened in the case was this: the petitioner brought a suit against the opposite parties for recovery of some property on the allegation that it was a part of a wakf estate of which he, the petitioner, was the Mutwalli. The suit was valued by him at Rs. 5,100 and the plaintiff petitioner paid advalorem court-fees on that sum. The defendants opposite parties pleaded inter alia that the property in suit had been under-valued. The question of valuation was heard by the learned Subordinate Judge on 6 July 1932 and the orders were reserved. On 8 July 1932 the petitioner made an application to continue his suit in forma pauperis. On 16 August 1932 the learned Judge refused the petitioner's application to continue the suit as a pauper without investigating the question whether the petitioner was a pauper or not, apparently on the ground that after the suit had been instituted in the ordinary way the Court had no powers to allow the plaintiff to continue it in forma pauperis, and by a subsequent order on the same day the learned Judge came to the conclusion that the suit had been undervalued, that the proper valuation was Rs. 20,000, and called upon the petitioner to deposit the deficit court-fees.

(2.) The only question that arises for our consideration in the present Rule is whether a Court can allow a suit, after it hat been instituted in the ordinary way, to be continued in forma pauperis. This question on the authority of some decisions of this Court as well as of the Bombay High Court should, in my opinion, be answered in the affirmative. In the case of Nirmul Chandra V/s. Dayal Nath (1876) 2 Cal 130 and Thompson V/s. The Calcutta Tramway Co., Ltd. (1893) 20 Cal 319 it has been distinctly held that a Court has the power to allow a plaintiff to continue a suit instituted in the ordinary way in forma pauperis, and the Bombay High Court also, in Revaji Patil V/s. Sakharam (1884) 8 Bom 615, has held the same view. The learned Subordinate Judge thought that the correctness of these decisions has been doubted in the case of Mrs. Selina Sheehan V/s. Hafez Mahammad Fateh Nashib AIR 1932 Cal 685, a decision to which one of us was a party. But Selina Sheehan's case is no authority for the proposition that a Court has got no powers to grant an application to continue a suit in forma pauperis. If the learned Judges in Selina Sheehan's case interfered with the order of the lower Court it was not so much on the ground that the Court had no authority to grant an application to continue a suit as a pauper, as on the ground that the Court should, under the provisions of Order 7, Rule 11, Civil P. C, have rejected the plaint. Such a contingency however did not arise in the present case. In the present case the application to continue the suit in forma pauperis was rejected without any investigation of the question of the petitioner's pauperism and before the petitioner was actually called on to put in any deficit court-fees.

(3.) Mr. Nasim Ali for the opposite parties drew our attention to the fact that the cases of Nirmal Chandra V/s. Dogal Nath (1876) 2 Cal 130 and Thompson V/s. Calcutta Tramway Co. Ltd. (1893) 20 Cal 319 (supra) were cases on the Original Side of this Court, where the provisions of Order 7, Rule 11 of the Code were not applicable. But these two cases, as also the case of Revaji Patil V/s. Sakharam (1884) 8 Bom 615 (supra), appear to me to have been decided in the way in which they were decided on general principle?the general principle that where a Court can allow a plaintiff to sue as a pauper, it is only reasonable to hold that that Court has the power to allow him to continue a suit that has been instituted in the ordinary way in forma pauperis. The same view has been held in a very recent decision of this Court in Surendra Chandra Roy V/s. Showdamini Roy . For the reasons stated above I would make the Rule absolute with costs, hearing-fee one gold mohur. The order of the learned Subordinate Judge refusing to entertain the petitioner's application to continue the suit in forma pauperis is set aside, and it is directed that the learned Judge should proceed with the consideration of that application on its merits. In view of what we have got to decide in the present Rule it is not necessary for us to say anything as to what would be the effect of the provisions of Rule 8, Order 33 of the Code, on the petitioner's application. Jack, J.