Pokhan Gorain and Others vs Bengali Gorain and Others

Rowland, J.—This is an application to revise an order of the Subordinate Judge, Second Court, Patna, allowing Bengali Gorain and Baldeo Gorain to continue as paupers a suit instituted by them against the petitioners. The suit was instituted on 13th December 1989, on a court-fee of Rs. 15 as a declaratory suit without a prayer for recovery of possession as the plaintiffs alleged themselves to be in possession.

The plaintiffs, on 21st December 1931, by a petition said that they did not wish to press their prayer for permanent or temporary injunction in the suit nor the petition for temporary injunction which they had already filed. They also prayed for deletion of relief No. 2 from the plaint (which was a relief for a declaration that the plaintiffs had been illegally dispossessed by the defendants, opposite party from the properties in suit and that they are entitled to recover possession with mesne profits and that possession with mesne profits be given to them after dispossessing the defendants). The plaint, however, was not amended and the Subordinate Judge on 7th February 1940, held that the suit was a suit for a declaration with consequential relief and the plaintiffs were bound to pay ad valorem court-fee. The plaintiff''s being called on to pay deficit court-fee took time for the purpose on several dates and on 4th March 1940, presented a petition for leave to continue the suit as a pauper suit which had been commenced in the ordinary form. The Subordinate Judge held an inquiry into the fact of pauperism which he decided holding that the plaintiffs were paupers and he allowed them to continue the suit as such.

Two points are taken in revision: firstly, that the Court should have rejected the plaint under Order 7, Rule 11 leaving it to the plaintiffs to present a fresh application for leave to sue as paupers; that application to be in the form laid down in Order 33, Rule 2.

For this proposition reliance is placed on observations in Selina Sheehan Vs. Hafez Mohammad Fateh Nashib, , in which doubt was expressed whether the Court has power to allow the plaintiff to continue in forma pauperis a suit which has been instituted in the ordinary way; but it has been held in a number of cases that the Court has such a power including a recent decision of the Calcutta High Court in Hafiz Mahammad Fateh Nasib Vs. Aminuddin and Others, . In that case the question was left open as to what would be the effect of the provisions of Rule 8 of Order 33 of the Code on the application. It seems to me clear that before a party can proceed as a pauper with the prosecution of a suit, there must be an application for permission which must comply with Rule 2 of Order 33, that is to say it must contain the particulars required in regard to plaints in suits; it must contain a schedule of the applicant''s moveable or immovable property and it must be signed and verified in the manner prescribed for pleadings. Furthermore, when the application is granted Rule 8 lays down that it is the application which is to be numbered and registered and deemed to be the plaint in the suit. The suit is then to proceed in all other respects as a suit instituted in the ordinary manner.

In cases where a question may arise as to whether a suit is in time or not, Rule 8 would appear to provide the answer to the question whether the suit will be deemed to have been instituted at the date of the application or on some earlier date when the plaintiff is permitted to use along with the application a document of plaint which was presented to the Court without the necessary court-fee and without an application to sue as a pauper, but on a date prior to the application to sue as a pauper. But that question is not before me now. I am only to determine whether the suit shall proceed, not to say on what date it is to be deemed to have been instituted.

In face of the decisions, I cannot say that the Court was wrong in allowing the plaintiffs to carry on this litigation as paupers, for the application of 4th March to which I have already referred contains all the particulars required to be contained in such an application by Order 83, Rule 2. It is a self contained and sufficient application for the prosecution of a suit as a pauper.

The next point was that the application should have been disallowed on the ground that the plaintiffs are found by the Subordinate Judge to have certain immovable property, that is to say, a share in 1� bighas of land along with their grand-father the existence of which they did not disclose in their application to be allowed to sue as paupers.

I am referred to the decision in Durga Prasad v. Srinewas Surekha AIR 1930 Pat. 368, where a. Division Bench of this Court refused an application for leave to appeal in forma pauperis on the ground that the applicant had not set forth his assets with the utmost good faith. It was said in such a case that it was open to the Court to reject the application ab initio without ordering inquiry into the fact of pauperism and this Court did reject the application; but it was not laid down that an applicant must necessarily be deemed to be acting in bad faith because there is an omission to specify in the application some particular item of assets. "Whether in such a case bad faith is to be imputed so as to disqualify the applicant from being allowed to litigate as a pauper is a question primarily for the Court of fact and is not a question on which I should be disposed in revision to interfere with the view taken by the Court of first instance.

In the result I dismiss this application, but in the circumstances parties will bear their own costs.