Birj Ballab Lallji and Another vs Beney Krishna and Others

Wort, J.—In this case the two petitioners seek the revisional powers of this Court with regard to an order of the learned Subordinate Judge of Patna made on the 28th February 1927, by which he rejected their petition to sue in a suit in forma pauperis. It would appear that the application was made on the 6th December 1926, and on the 25th January 1927 notice having been given to the Government, Government reported that the two petitioners were paupers.

On the 26th February 1927, the application was taken up and heard. On the same day the petitioners sought to amend their petition by including certain properties in the schedule attached to their petition which up to that time had not been included and consisted of the interest of plaintiff 2 under the will of on Seri Mulchandlal, deceased. It appears that plaintiff 2 at the time of the hearing of this petition to sue in forma pauperis had merely an interest under the will and had not at that time received anything under the bequest, and it appears that in those circumstances he was of the opinion that it was unnecessary under Order 33, Rule 2 to include that interest in his schedule; and it is stated by the learned Counsel for him before me that the petition of the 26th February 1927 was amended merely ex-abundanti cautela. Now the learned Subordinate Judge, when the application came up, rejected the petition to amend and decided that the interest aforedescribed not having been included in the schedule was a non-compliance with Order 33, Rule 2, in that it had not been framed and presented in the manner prescribed by that rule.

Now, if the question of whether the omission of this property was a non-compliance with Order 33, Rule 2 had to be decided, I should be constrained to hold that the mere omission of a property was not a non-compliance of that rule. The order certainly states that it shall contain the particular of any moveable or immovable property belonging to the applicant with the estimated value. But Order 33, Rule 2. deals rather with the form of the application than with the truth of its contents, and it would appear that the case of Kuppuswamy Aiyar v. Muthuswamy Aiyar [1915] 1 M.L.W. 1068 is an authority for that proposition. Now the chief point, however, urged against this application is one which is really in the nature of preliminary objection and it is that this Court, in the circumstances, has no power to interfere with the order of the learned Subordinate Judge inasmuch as he has exercised his jurisdiction; and although it may be against the petitioners and on one view of the law may be erroneous in law, at the same time it is not to be criticised for that reason.

Now it is quite clear from the record of this case that the learned Subordinate Judge has not really decided the question which was before him, in the sense he has taken shelter in a view of the law which, having regard to the opinion I have already expressed, is erroneous. The effect of that is, of course, that he has declined to decide the question whether or no these petitioners are paupers within the meaning of Order 33, Rules 2 to 5, and in my view this is a matter which should be decided, and in those circumstances it seems to me the best order that can be made is that the case should be remanded to the learned Subordinate Judge for him to try the case of whether or no these petitioners are entitled to sue as paupers. In my opinion the effect of this order will be to do justice to both parties and I, therefore, remand the case.