P. Venkat Rao and others vs D. Ramamma

Muktadar

The petitioners were the respondents in O.P. No. 2 of 1973. They raised the plea that the trial court has no jurisdiction to entertain the petition for pauperism of the respondent herein on the ground that the value of the property is Rs. 56,654.00. Initially the pauper valued the suit property at the marked value of Rs. 19,230.50. The claim being for half share she consequently valued the suit at Rs. 9,616.25. On the basis of the contention advanced by the petitioner therein, the Court below passed the impugned order holding that the question of jurisdiction cannot be gone into at the stage of enquiry into pauperism and that it could be decided after the suit is numbered if the defendants raise such an objection with regard to jurisdiction of the Court. Aggrieved by the order of the trial Court, the petitioners held this revision. Mr. B.V. Subbarayudu, the learned advocate for the petitioners herein, contends that the lower court was incorrect in not inquiring into the question of jurisdiction even before it took up the inquiry into paupersim. He submits that if the question of jurisdiction is involved, it is the duty of the trial Court to inquire into it even though it is at the stage of inquiry with regard to the pauperism of the petitioner therein. In support of his contention he sites the decisions in Periyasami Padayachi v. Ulaganathan, AIR 1949 Mad. 162 Eswaramm v. Chinna Kota Reddi and Others AIR 1949 Mad. 417 Raj Narain Saxena Vs. Bhim Sen and Others, to show that the Madras High Court and the Allahabad High Court were of the view that even before the inquiry into pauperism is commenced, if the Court holding the inquiry comes to know that it has no jurisdiction to entertain the pauper petition, it is its duty to first dispose of the matter with regard to the jurisdiction. If it comes to the conclusion that it has no jurisdiction to entertain the pauper petition, it could return the petitioner for presentation before the proper Court Mr. Balakrishna Murthy, learned counsel appearing on behalf of the respondent contends that the judgement of this Court delivered by my learned brother Madhava Reddy, J., in Sattu Koteswaramma Vs. Sattu Subrahmanyam and Another, and the judgment of the Supreme Court in Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, would show that it is the duty of the trial Court inquiring into pauperism of the petitioner to dispose of the petition strictly in accordance with the provisions Or 33 R 5 C.P.C., on the basis of the allegations made by the petitioner therein alone, and not on the basis of any counter filed by the respondent therein Having given a careful thought to these rival contentions of the learned advocates I am of the opinion that the contention advanced by Mr. Subbarayudu has to be accepted. The rulings cited by Mr. Balakrishna Murthy, to my mind, are not at all relevant to the case on hand. Those rulings presuppose that the Court inquiring into the pauperism of the petitioner had the necessary jurisdiction to do so. Mr. Balakrishna Murthy also cited the ruling of the Patna High Court in Gupteshwar Missir Vs. Chaturanand Missir and Others, to show that under the provisions of Or. 33 r. 5 C.P.C. it is not open to a Court to go into the question of valuation of the property so as to determine the preliminary issue of jurisdiction because it is a matter which arises only after the application has been granted, So far as the Patna ruling is concerned, a close reading of the same would show that if from the petition to sue in forma pauperies it can be culled out that the Court has no jurisdiction to hear the petition, it can return the petition to be presented in the proper Court It is clear from the ruling referred to above that a Court can return the plaint if it comes to the conclusion, on the facts alleged in the petition to sue in forma pauperies that it has no jurisdiction to entertain the application. The learned Judges in the said ruling of the Patna High Court, to my mind, have given a strict interpretation to Or. 33 r, 5 C.P.C. because to my mind Rule 5 of Or. 33 C.P.C. is not exhausive but also covers other ground and one of the grounds that could be made for the purpose of returning the petition to be presented in the proper Court is that the Court has no jurisdiction to entertain that petition. The Rulings referred to by Mr. Subbarayudu are, to my mind, more relevant to the facts of this case. One of the reason given by Yahya Ali J. (as he then was) in Periyasami Padayachi v. Ulaganathan AIR 1949 Mad. 162 Supra is that the petition to sue in forma pauperis is a plaint-cum-application. The learned Judge observed that if the Court in which the petition was first filed comes to the conclusion that the petitioner is a pauper and permits him to sue in forma pauperis and after the petition is registered as a suit finds on an objection taken by the defendant that Court has no jurisdiction to entertain the suit, it could obviously return the plaint to the plaintiff therein for presentation before the proper Court, in which case the second Court in which the plaint is presented will have to again go through the process of inquiry with regard to the pauperism of the petitioner therein. This would also involve taking much of the time of the Court. The learned Judge in paragraph 3 of the judgment had come to the following conclusion,

An application for leave to sue in forma pauperis embodies a plaint and is for all practical purposes to be treated as a plaint, because if the application is allowed the suit is deemed to have been filed on the date when the application was presented.

In Eswaramma v. Chinna Kota Reddi And Others AIR 1949 Mad. 417 Supra one of the reasons given by the learned Judge for coming to the conclusion is that it was the bounden duty of the Court to get rid of the objection by deciding that the suit was within its pecuniary jurisdiction before proceeding to consider the question of pauperism, both on general principles and the question of convenience of parties.

The learned Judge observed as follows:--

The inconvenience will arise like this. Supposing the lower Court, without deciding the question of jurisdiction, decides against the pauperism, and the petitioner sells whatever properties she has, and pay court-fee based upon the valuation of the plaint, and the lower Court later on, hears the question about the pecuniary jurisdiction and decides that it has no pecuniary Jurisdiction and returns the plaint for presentation in the proper Court, then the petitioner would have to file the plaint in the Sub-Court paying additional court-fees and may not have enough to pay, and may be driven to file another pauper application there, and will not recover the court-fee she has already paid and may be thus, incapacitated in the conduct of her suit there. If, once for all, she is told that the pecuniary jurisdiction is with the Sub-Court and her pauper petition is returned to her, she can approach the Sub-Court with the pauper petition and will not have spent away her scanty funds in paying any court-fee.

Even in Raj Narain v. Belm Sen AIR 1966 Allh. 265 it has been held. An application for permission to sue as a pauper which is not granted is not a plaint, O. 33 R. 5 cannot be said to be exhaustive of the circumstances in which an application for permission can be rejected. It can be rejected in other circumstances to secure the ends of justice or prevent abuse of the process of the Court. Rejecting the application on the ground that the Court has no jurisdiction over it is rejecting for the ends of justice and preventing abuse of the process of the Court. When in reply to the notice issued under R 6 of O. 33 the opposite party appears and disputes the correctness of any statement in the application relevant to the question of the Court''s jurisdiction or of the court fee payable on the plaint or of limitation, the Court has to decide the dispute before it decides the question of papuperism. If it finds that it has no jurisdiction over the suit or that it is barred by time it may reject the application.

In view of the above discussion, I am of the opinion that the order of the Court below is incorrect and has, therefore, to be set aside. The revision is allowed with costs. The lower court will inquire as to whether it has jurisdiction to inquire into the pauper petition filed by the respondent and dispose of the same according to law.