NONI KRISHNA BASAK Vs. NABAMONJURI DASSI

JUDGEMENT

(1.) The petitioner alleges in para. 3 of his petition that on the 10 July 1926, the day on which the order complained of was passed his witnesses were in attendance and his vakil, though not called on, insisted on the evidence of those witnesses being taken, but that the Court refused to take that evidence and disposed of the application of the opposite party for leave to sue as pauper upon the basis that there was no opposition by the Government to such application. This statement is supported by an affidavit and is not contradicted before us. On the other hand, there is on the record a list of witnesses present which was filed on that day and in which the names of three witnesses appeared as having been present on the occasion. It is clear, therefore, that the Munsif disposed of the matter without taking such evidence as the petitioner had offered before the Court. Having regard to Rule 6 and Rule 7 of Order 33, the former of which requires a notice to be given to the opposite party and the Government for receiving any evidence which may be adduced in proof of the pauperism and for hearing any evidence which may be adduced in disproof and the latter provides that the Court should examine the witness, if any, produced by either party, there can be no doubt that the learned Munsif acted without jurisdiction in. dealing with the case in the way that he did.

(2.) We accordingly set aside the order passed by him on the 10 July 1926, the order complained of in this Rule, and direct that an enquiry into the question of pauperism or otherwise of the opposite party will be held afresh and in the presence of the petitioner giving the petitioner such opportunity as may be rear sonable for adducing evidence in support of his contention.

(3.) The rule is thus made absolute but we make no order as to costs.