NUR MUHAMMAD Vs. FIRM MAULVI JAMIL AHMAD

JUDGEMENT

(1.) THE appellant presented an application in the Court of the Subordinate Judge of Allahabad for leave to sue as a pauper for the recovery of a certain sum of money. THE learned Subordinate Judge was of opinion that no cause of action accrued to the plaintiff within the jurisdiction of his Court. He accordingly made an order in the following terms: I return the plaint for presentation to the proper Court. "From this order the present appeal has been preferred. A preliminary objection has been taken on behalf of the respondent to the effect that no appeal lies. It the order is in reality an order returning a plaint an appeal does lie under Order XLIII, Rule 1, of the Code of Civil Procedure, but what we have to consider is whether there was any plaint before the Court at the time when it made this order. Order XXXIII provides the procedure for suits by paupers. Rule 2 of the Order provides that "every application for permission to Sue as a pauper shall contain the particulars required in regard to plaints in suits and a schedule of any moveable and immoveable property belonging to the applicant with the estimated value thereof." Rule 4 provides that where the application is in proper form and duly presented the Court may, if it thinks fit, examine the applicant or his agent." Under Rule 5 the Court shall reject an application for permission to sue as a pauper in the oases specified in that section. Rule 6 provides that if the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day of which notice shall be given to the opposite party and the Government, Rule 8 provides that "where the application is granted it shall be numbered and registered and shall be deemed the plaint in the suit." It is thus manifest that what was presented to the Court was not a plaint but an application and it would reach the stage of a plaint when the application was granted, and it would then be deemed to be the plaint in the suit. THE Court below did not adopt any of the procedure mentioned in the rules to which we have referred above, but it proceeded to consider whether it had jurisdiction to entertain the suit and holding that it had no jurisdiction, it ordered the application which it regarded as the plaint to be returned. As at that stage there was no plaint before the Court, the order must be deemed to be an order returning the application. For this there is no authority in Order XXXIII. If the order be deemed to be a right order returning a plaint an appeal lies from that order, but. in the present case the order cannot be held to be an order returning a plaint but it is an order returning an application. Such an order was passed without jurisdiction and should not have been passed. Although, therefore, no appeal is allowed from the order which is clearly an improper order, we deem it desirable in the exercise of our powers of revision to treat his appeal as an application for revision and so treating it we think we should be justified in setting aside the order of the Court below and in sending back the case to that Court with directions to adopt the procedure mentioned in Order XXXIII of the Code. We accordingly order that the application returned by the Court below find filed with the memorandum of appeal in this case, be sent to the Court below with directions to deal with it in the manner indicated above. We make no order as to the costs of this appeal.