DHANESHWAR NATH TEWARI Vs. GHANSHYAM DHAR MISRA

JUDGEMENT

(1.) This is an appeal against an order directing a temporary injunction to issue against the appellant restraining him "from transferring the properties in dispute except so far as may be necessary for ordinary enjoyment of the same," and restraining him "from receiving the amounts in dispute from the post office and the Court of Wards till 6 August 1938" which date was fixed for hearing the objections of the post office and the Court of Wards to whom notices were directed to issue.

(2.) The matter has arisen thus. One Nath Prakash Dhar Misra died some years ago leaving him surviving a widow Mt. Moharmani Kunwari. Nath Prakash Dhar Misra seems to have been possessed of considerable property, moveable and immovable. His widow died on 23 August 1935. The respondent, Ghanshyam Dhar Misra, on 28 April 1938, presented a plaint in the Court of the Civil Judge of Gorakhpur claiming the property left by Nath Prakash Dhar Misra on the allegation that he was the reversioner and that the succession had opened to him on 23 August 1935, when Mt. Moharmani Kunwar died. Ghanshyam Dhar Misra alleged that he was a pauper and was unable to pay the court-fee prescribed by the law on the plaint and prayed for leave to sue as a pauper. On 30 May 1938, Ghanshyam Dhar Misra presented an application praying that an injunction be issued to the appellant restraining him from damaging or alienating and removing the properties in suit and from doing various other things. The appellant is named in the plaint as defendant 1, and it is averred by Ghanshyam Das Misra that defendant 1 has without any right and title taken possession of the estate of Nath Prakash Dhar Misra on the false allegation that he is an adopted son of Nath Prakash Dhar. He has also alleged that the appellant was anxious to alienate the properties and to remove and appropriate the moveables and the cash. This application for an injunction being issued to the appellant was taken up for hearing by the Court below before the question of the plaintiff's pauperism had been decided. The application was contested by the appellant. He did not however file any written reply to the application of the respondent dated 30 May 1938. The main objection which seems to have been taken by the appellant before the Court below was that as the question of pauperism had not yet been decided the application was not maintainable. The Court below has overruled this objection and has passed the order mentioned above.

(3.) The learned Counsel for the appellant has referred to the provisions of Order 39, Civil P.C., and has urged that there must be a suit before the Court can have jurisdiction to issue an injunction. His contention is that until the application for leave to sue as a pauper has been granted, or the necessary court-fee has been paid by the respondent on his plaint, there is no suit. It has, on the other hand, been argued by the learned Counsel for the respondent that the Court below had jurisdiction to pass the order complained of at the stage at which the proceedings were in the Court below when that order was passed. The question that has been raised is not free from difficulty. The word suit has not been defined in the Code. Order 33, Rule 1 lays down that "any suit may be instituted by a pauper" subject to the provisions which follow. Rule 2 of that Order directs that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits...and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.