Chaitan Ray and Others vs Padma Charan Roy

Fazl Ali, J.—It appears that on 18th 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 8th January 1938 directed the plaintiff to make up the deficiency in the court fee within fifteen days. On 22nd 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 u/s 115, Civil P.C.

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.

It is contended that as the application of 22nd 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 22nd 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 22nd January 1938, then it will be difficult to hold that the requirements of Order 33, Rule 2 were not substantially com: plied with.

The mere fact that the Court did not pass an order on the amendment application at once will not necessarily make the present application defective. In Mahammad Fateh Nasib Vs. Saradindu Mukherjee, it was held that where a suit has been registered as an ordinary suit and the plaintiff does not pay deficit court fee within the time prescribed by the Court but applies for permission to continue the suit as a pauper, the application should not be rejected on the ground that the order of the Court requiring the court fee to be paid within a certain time has not been complied with.

This disposes of the only other contention which was raised on behalf of the petitioner before us. As was remarked by the Privy Council in AIR 1923 PC 128 Indrajit Pratap Sahiv. Amar Singh "rules of procedure are not made for the purpose of hindering justice," and on the facts already stated I see no ground whatsoever for interfering with the order passed by the Court below. I would therefore dismiss this application with costs; hearing fee one gold mohur.

Manohar Lall, J

I agree.