CHAITAN RAY Vs. PADMA CHARAN ROY

JUDGEMENT

(1.) It appears that on 18 December 1937, the opposite party instituted a partition suit in the Court of the Subordinate Judge at Puri on payment of a court- fee of Rs. 15. Some time later the petitioners appeared and filed a petition of objection to the effect that the plaintiff being out of possession of the property sought to be partitioned ought to be required to pay ad valorem court-fee on his plaint. This objection prevailed, and the Subordinate Judge on 8 January 1938 directed the plaintiff to make up the deficiency in the court fee within fifteen days. On 22 January, 1938 the plaintiff opposite party filed two petitions; one for the amendment of the plaint and another for leave to continue the suit in forma pauperis. The second application being granted by the learned Subordinate Judge, the petitioners have now moved this Court against the order granting the petition under Section 115, Civil P.C.

(2.) It has been held in numerous cases that a plaintiff may be allowed to continue his suit in forma pauperis although the suit was not originally instituted by him as a pauper. The point however which is raised by Mr. Roy in the present case is that the application presented by the opposite party offends against Order 33, Rule 2, Civil P.C., and should have been rejected under Order 33, Rule 5. Order 33, Rule 2 provides among other things that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits. Rule 5 provides that the Court shall reject an application for permission to sue as a pauper where it is not framed in the manner prescribed by Rule 2.

(3.) It is contended that as the application of 22 January, 1938 does not contain the particulars required in regard to plaints and, as the plaint of the original suit was defective and the application made by the opposite party for the amendment of that plaint has not been disposed of, it was obligatory on the Court to throw out the application of the opposite party under Order 33, Rule 5. It appears however on a reference to the application made by the plaintiff on 22 January, 1938 that he had asked the Court to regard his original plaint and also the petition for its amendment as parts of his application. If the original plaint and the amendment petition are to be read as parts of the application made on 22 January, 1938, then it will be difficult to hold that the requirements of Order 33, Rule 2 were not substantially com: plied with.