Mercy and Others vs Kurien and Others

V.P. Gopalan Nambiyar, Actg. C.J.

The question raised in this revision petition is subtle and interesting, namely, whether the presentation of a pauper application to the ministerial officer of the court was proper and valid. The court below held that it was not proper and for that reason, it dismissed the petition for permission to sue as pauper. Against the said order, the applicants, who filed the pauper application, have preferred this revision petition, which was referred by one of us (myself) to a Division Bench.

Order XXXIII, Rule 3 of the CPC reads as follows:

Notwithstanding anything contained in these rules, the application shall be presented to the court by the applicant in person, unless he is exempted from appearing in court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person.

The expression ''in person'', as has been pointed out, is relatable to ''applicant'' and not ''court''. In this case, it is admitted that the requirement of personal presentation insisted on by the rule was satisfied. But the application was presented to the ministerial officer of the court (Junior Superintendent) and not to the Presiding Officer, the Judge. The question is whether presentation to the Presiding Officer of the court is necessary, or whether presentation to the ministerial officer would suffice. In Chidambaram Chettiar v. Kadar Mohideen Rowther AIR 1924 Mad 901 in a short judgment, Jackson, J. of the Madras High Court held that Rule 14 of the Civil Rules of Practice which permitted presentation of a pauper application to the Sheristadar of the court was not ultra vires. It was pointed out that the expression "court" was not defined in the Code and that the words "court or such officer as it appoints in this behalf" in Order 41, Rule 1 of the CPC should be a sufficient indication for Order 33, Rule 3 also (Order 4 Rule 1 also uses the same language as Order 41, Rule 1). Counsel for the Respondent argued with some force that the difference in language of Order 4 Rule 1 and Order 41, Rule 1 on the one hand and Order 33, Rule 3 on the other, is significant. He also invited our attention to an earlier decision of the Nagpur High Court in Jairam v. Motilal AIR 1921 Nag 106 (which is not referred to in the Madras decision). That decision stated as follows:

The rule mentioned speaks of presentation to the ''court'', and there are instances in the Code where that word cannot refer to the Judge personally, as for example, Order 7, Rule 10. There can, however be no doubt that under Rule 2 of Order 33 an application for leave to sue in forma pauperis must be presented to the Judge himself, and presentation to the clerk of court is not sufficient. The rule speaks only of the court obviously with the intention of distinguishing the presentation of such an application from that of an ordinary plaint which under Order 4, Rule 1 may be presented ''to the court or such officer as it appoints in this behalf''. Further Rule 4 of Order 33 which follows that prescribing personal presentation to the court speaks of the applicant being examined by the ''court'', and this can of course only mean the Judge.

It is however equally clear that it is not necessary for the applicant to place his petition in the actual hands of the Judge himself. He would naturally and ordinarily give it to some official of the court, the reader or even a chaprasi, and the reader would either put him before the Judge and his petition in the Judge''s hands at once or instruct him to come at some more convenient time, a few minutes or hours or even days later. When at that later time the reader puts the petition in the Judge''s hands and the Petitioner stands before him, we have undoubtedly a proper presentation of the petition to the Judge by the applicant in person, such as is contemplated by Order 33, Rule 2 and if this is done by the clerk of court instead of the reader surely the presentation is more rather than less proper.

With respect, it appears to us that what has been stated in the closing sentence of the quotation supra, seems to a great extent to soften the rigour of what is stated in the earlier paragraph.

We have endeavoured as best as possible, and with the able assistance of counsel, to find out the object and the purpose of the rule and whether there is need to insist on presentation of the application personally to the Presiding Officer of the court. We are unable to discern any convincing reason in insisting on such requirement. In Chitaley''s Code of Civil Procedure, 8th Edition, Vol. 3, page 1156 it is stated:

The object of the rule is to enable the court to examine the Petitioner, apparently with a view to satisfy itself prima facie that the applicant is a real pauper.

If this be the object of the rule, we feel that it can certainly be served by presentation to the ministerial officer of the court, who might, with the utmost despatch, send it up to the Presiding Officer for the purpose of exercising the powers under the appropriate rules of order XXXIII of the Civil Procedure Code. Insistence on presentation to the Presiding Officer personally would entail disturbance to the officer, or restrict the Appellant''s right of presentation to the time when the Presiding Officer is not actually sitting in court. We are, on the whole, satisfied that in this case there was a proper presentation of the pauper application and that the rejection of the said application on the ground that it had not been presented as enjoined by order XXXIII of the Code of Civil Procedure, was not proper. We allow this revision petition, set aside the order of the Munsiff and direct him to proceed with the application in accordance with law. There will be no order as to costs.