Wazir Paras Ram vs Manga Ram

A.S. Anand, J.—This civil revision petition is directed against an order of the Sub-Judge, Jammu, dated 13-10-1979, whereby he allowed

the respondent herein to sue in forma pauperis.

Briefly stated the facts are that the respondent filed an application seeking permission to sue the petitioner for the recovery of Rs. 5500/- as a

pauper. The respondent stated that his daily income from business of cigarette selling, in the court compound, was hardly Rs. 2/3 per day and that

he was unable to pay the court-fee. That the petitioner had taken a loan of Rs. 4300/-, the entire savings of the respondent and executed a

promissory note with the stipulation that the amount shall be repaid on demand together with interest. A receipt was also executed along with the

promissory note on 19-3-1975. That the respondent presented to the petitioner, through a notary, the promissory note for payment but in spite of

the presentation, the petitioner has not made any payment so far. The respondent prayed that after deciding his application to sue in forma

paupries, the same be treated as a suit for recovery of Rs. 5500/- (the principal and interest) from the petitioner. Along with the application, the

respondent attached a schedule giving the list of his belongings.

Notice of the application to sue in forma pauperis was issued to the petitioner as also to the Collector, Jammu. The petitioner resisted the

application and stated that the respondent is not a pauper and he had sufficient means to pay the court-fee. On merits, the petitioner denied the

execution of the promissory note or the receipt of Rs. 4300/-. The presentation of the promissory note was also denied. The Collector, Jammu,

however, reported that the respondent did not own any immovable property and that his monthly income was about Rs. 110/-only. The

respondent then led evidence in support of his application. The trial court, without giving any opportunity to the petitioner to adduce evidence in

rebuttal of the evidence led by the respondent allowed the application of the respondent to sue as a pauper. That order was challenged in the High

Court by means of a revision petition and the same was set aside on the ground that the petitioner had been denied an opportunity to adduce

evidence in rebuttal of the evidence led by the respondent. The case was remanded to the trial court for a fresh decision in the light of the

observations made. Despite numerous opportunities having been given to the petitioner by the trial court, after the case was remanded, the

petitioner did not produce any evidence nor did he appear himself in the witness box to rebut the evidence of the respondent. The trial court after

consideration of the entire evidence, declared the respondent to be a pauper. Hence this revision.

Mr. J. P. Singh, learned counsel for the petitioner has in the first place argued that the application filed by the respondent was liable to be

dismissed under Rule 5 (a) of Order 33 inasmuch as the application had not been presented by the respondent in person. The next argument of

learned counsel is that since the schedule of the property, annexed to the application, had not been verified by the respondent, there has been non-

compliance with Order 33, Rule 2, Civil P. C. warranting dismissal of the application. The last argument raised by the learned counsel is that the

application of the respondent was liable to be rejected on the ground that no notice had been given to the Government pleader by the trial court

before declaring the respondent to be a pauper.

So far as the 1st contention is concerned the same has no merit at all. A perusal of the application filed by the respondent shows that it had been

presented by the respondent in person in the court of the District Judge, Jammu. The endorsement of the District Judge on the application shows

that the same had been presented before him by the respondent himself. Thus, the first argument raised by Mr. J. P. Singh has no merits and is

devoid of any force.

Coming now to the second argument as regards the non-verification of the schedule of the property annexed to the application. In this

connection it would be desirable to first notice the relevant provisions :

Order 33, Rule 2 reads as follows :

Rule 2. Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any

moveable or Immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto, and it shall be signed and

verified in the manner prescribed for the signing and verification of pleadings.

A plain reading of the rule suggests that it is only the 'application' for permission to sue as a pauper which is required to be signed and verified.

So far as the schedule of any movable or immovable property, belonging to the applicant is concerned, there is no requirement that same should

also be signed and verified by the applicant. The punctuation in Rule 2 (supra) is quite indicative of the fact that schedule of the property need not

be signed and verified by the applicant. For the view I have taken I am fortified by the judgment of this court in Mohamad Isa Vs. Mt. Shahmali,

wherein it was observed :

The provisions of Order 33 do not warrant that these rules must be meticulously interpreted against a pauper applicant, more so when there is no

provision for the verification of the schedule. The Court has only to see if there has been substantial compliance with Rr. 2 and 3 of Order 33.

Even otherwise the non-verification, even if it be considered to be required, would not entail the rejecttion of the application because the object

of the Rule is only to help the Government to ascertain whether or not the applicant is in a position to pay the court-fee payable on the plaint. The

non-verification of the schedule in my opinion does not defeat the object of the rule because the rule cannot be treated in isolation. In the instant

case there is substantial compliance with the rule and as such the application is not liable to be rejected on that score. The second argument of Mr.

Singh must, therefore, also fail.

Coming now to the last contention raised by Mr. J. P. Singh. For a proper appreciation of the contention, it would be desirable to first note the

provisions of Rule 6 to Order 33 which is the relevant provision. The said Rule reads as follows :

Rule 6. Where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day (of which at least ten

days' clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the applicant may adduce in

proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof.

The precise argument of learned counsel for the petitioner is that the notice in this case was sent by the trial court to the Collector and not to

the Government pleader and as such the impugned order stands vitiated for non-compliance with the provisions of of Order 33, Rule 6, C. P. C.

(supra). Reliance is placed by learned counsel on a judgment of the Judicial Commissioner, Kutch, in Kalyanji Vardha-man v. Shamji Shivji AIR

1951 guj 95 : AIR 1951 Kut 96 wherein it was held that if the notice under Rule 6 has not been given to the Government pleader, the irregularity

vitiates all proceedings and there must be a fresh investigation into the pauperism of the applicant, after notice to the Government pleader.

Indeed the provisions directing notice to the opposite party and the Government pleader is imperative under the Rule. Where, however, notice

has been issued to the opposite party and in spite of the opposition of the party an order has been passed granting leave to the applicant to sue as

a pauper, in my opinion the issuance of notice to the Collector instead of the Government pleader would not vitiate the proceedings. A Division

Bench of Hyderabad High Court in Siddappa v. Mahdevamma AIR 1955 ap160 held :

Although the notice to Government Pleader is mandatory under the provisions of Order 33, Rule 6 where the defendant was present and in spite

of his opposition the order granting leave to the plaintiff to sue as a pauper was passed by which substantial justice had been done and the

defendant, was not in any manner injured, the order could not be disturbed in revision, on mere technicalities of law that the notice was not issued

to the Government Advocate.

Moreover, the mere failure on the part of the court to give notice to the Government pleader would not give any cause of action to the non-

applicant, who had been afforded an opportunity to rebut the case of the applicant, to complain through a revision petition in the High Court. The

position may be different if the revision petition is filed by the Govern-ment, complaining of the failure of the court to give notice to the Government

pleader and the High Court is not obliged to interfere at his instance in a revision petition u/s 115, Civil P. C.

The observations in AIR 1951 guj 96 (supra) in my opinion are too broadly stated and with due respects to the learned Judicial Commissioner,

I find myself unable to subscribe to that view. Since, a revision is a discretionary remedy, the High Court would interfere only in exceptional cases

where the petitioner is able to show any material irregularity which has given any cause of action to him to complain. This aspect does not appear

to have been debated before the learned Judicial Commissioner in the Kutch case.

The matter of Court Fee is essentially a matter between the State and the pauper and the opposite party is granted an opportunity only to show

that the application is not bona fide etc. The opposite party cannot take upon itself the role of the State and complain about the failure of the court

to issue notice to the Government pleader, when the court has in any case issued notice to the Collector. Of course, it is desirable and proper for

the court to issue notice to the Government pleader in an application seeking permission to sue as a pauper, in addition to asking for a report from

the Collector, but the issuance of the notice to the Collector instead of to the Government pleader does not vitiate the proceedings and is neither a

jur-isdictional defect nor a material irregularity or illegality. In this view of the matter, the 3rd argument of Mr, Singh is also repelled.

As a result of the aforesaid discussion this revision petition is dis- missed with costs. Parties shall appear before the trial court on 15-3-1980.