Siddappa and others vs Mahadevamma

Misra, C.J.—We have heard the applicants'' learned counsel in support of this revision petition. The order against which it is directed, granted leave to the plaintiff-respondent to sue as a pauper on a finding being reached to the effect that the plaintiff was not possessed of sufficient means to enable her to pay the court-fee prescribed by law for the plaint in her suit for maintenance against her father-in-law. The father-in-law has now come up by way of revision and the sole ground upon which he bases his application is that notice of the petition for leave to sue in forma pauperis was not given to the Government pleader. That such notice is mandatory under the provisions of R. 6 of O. 33 does not admit of doubt but two things are clear:

(i) that the petitioner is not in any manner injured by the order which was passed by the court below and

(ii) substantial justice having been occasioned in the case it would be unfair to interfere with the order on mere technicalities of law.

Reference was made on behalf of the applicants to the decision in -- Noni Krishna Basak Vs. Nabamonjuri Dassi, . In that case the revision petitioner alleged that the High Court accepted the allegation that on the day on which the order complained of was passed, though the petitioner''s witnesses were in attendance and his vakil insisted on the evidence of those witnesses being taken the court refused to record the evidence and disposed of the application for leave to sue as a pauper upon the mere basis that there was no opposition by the Government to such application. The court in the circumstances held that having regard to Rr. 6 and order 33 rule 7 of O. 33, C. P. C., the former of which requires a notice to be given to the opposite party and the Government for receiving any evidence which may be adduced in proof of the pauperism and for hearing any evidence which may be adduced in disproof and the latter provides that the court should examine the witness, if any, produced by either party, the learned Munsiff acted without jurisdiction in dealing with the case in the way he did.

It is clear that the decision is not an authority for the proposition that in the absence of issue of notice to the Government advocate the order can be set aside in revision at the instance of persons who were present and in spite of whose opposition a finding as to the inability of the plaintiff to pay the requisite court-fee was decided.

The application is dismissed with costs.