Dera Musa Wala and Others vs Sewa Dass and Others

D.K. Mahajan, J.—This petition for revision is directed against the order of the Sub-Judge 1st Class, Mansa, rejecting the application of the Petitioner under Order 33, Rule 1, of the Code of Civil Procedure, on the ground that the Dera is not a ''person'' and, therefore, cannot sue as a pauper. On the question of fact it has been found that the Dera is a pauper. It was further held that: only that person who had actually presented the application could maintain the same and not the other five who had also joined with him because they had not personally come and presented the application. So far as the question whether a Dera can or cannot sue, the earlier decision of this Court in Associated Pictures Ltd. v. National Studios Ltd. AIR 1951 P&H 447, on ''the basis of which the Respondents'' contention had prevailed has been overruled by a Division Bench of this Court in Shri Gurdwara Sahib Kothi Begowal and Another Vs. Harnam Singh and Others, wherein it has been held that a Dera is a ''person'' and as such can bring a suit in forma pauperis. Therefore the decision of the Court below that no suit in forma pauperis is maintainable by a Dera is set aside.

With regard to the question whether the other five persons, other than the one who had actually presented the petition to sue in forma pauperis, were entitled to prosecute the application, the learned Judge in paragraph 5 observed as following:

Under Order 33, Rule 3, Code of Civil Procedure, the application to sue as ''pauper must be presented in the Court by the Applicant in person or by an authorised agent who has been specially authorised to present this application under Order 33. In the present case Mahant Darshan Dass alone filed this application in the Court. He was authorised by the other Applicants to file ''any application'' in the Court and there is no specific mention that Mahant Darshan Dass is specially empowered to present this application in the Court under Order 33, Rule 3, Code of Civil Procedure. Thus this application is liable to be rejected against the Applicants, other than Mahant Darshan Dass who have not joined in presenting it in person. But in view of the above discussion I hold that the present application to sue as a pauper on behalf of Dera Musa Wala is not maintainable. I decide this issue accordingly.

This decision is not in accordance with law as held in Hemaram, Chela of Padamdasaji Ramsanehi Sadhu Vs. Mansukhram, Chela of Bhikaram Sadhu and Another, with which I am in entire agreement. In the Rajasthan case also petition for leave to sue in forma paupe-ris was presented by one of the Plaintiffs on be-half of himself and other Plaintiffs and it was held that such a petition was rightly presented. I would accordingly hold that the other Petitioners whose powers of attorney are on the record were entitled to prosecute the matter.

The learned Counsel for the Respondents contended that the allegations in the petition do not show any cause of action for the suit and, therefore, under Order 33, Rule 5, the application to sue as a pauper should have been rejected. The matter was not raised in this form in the trial Court. In the trial Court the contention was that in view of the provisions of Section 92 of the Code of Civil Procedure, the present suit which was for recovery of trust property was not maintain-able without the consent of the Advocate-General. This contention was rejected on the short ground that Section 92 has no application where a trustee is suing to recover trust property from a stranger. See in this connection O. Rm. O.M. Sp. Firm v. Nagappa Chettiar AIR 1941 PC 1, O. Rm. O.M. Sp. Firm vs. P.L.N.K.M. Nagappa Chettiar 4. So far as the contention which is now being raised is concerned it has no legs to stand upon. The allegations in the plaint do disclose a cause of action and therefore the application to sue as a pauper could not have been rejected under Order 33, Rule 5 of the Code of Civil Procedure.

Another contention raised is that the Applicant has no locus standi to bring the suit. This is a matter which will have to be considered after the suit is registered and it cannot be decided at this stage and in the present proceedings.

For the reasons given above, this petition is allowed. The decision of the trial Court rejecting the application under Order 33, Rule 1, is set aside and it is directed that the suit should proceed in forma pauperis. The parties are directed to appear before the trial Court on 30th March, 1964.