Ratna Bahadur Rai v. Bir Bahadur Rai — 1983 DIGILAW 9 (SIK)

Judgement ORDER :- This is a revision against the order of the learned District Judge granting the application of the plaintiff-respondent for leave to sue as a pauper under Order 33 of the Civil P. C., as it stood before the Civil P. C. (Amendment) Act, 1976, the latter Act not having been applied to this State as yet. An order granting or refusing an application for leave to sue in forma pauperis is a "case decided" within the meaning of Section 115 of the C. P. C. and is, therefore, open to revision. This is what has been held by this Court in Kul Bahadur Thapa v. Kaziman Tamang, (1978) 2 Sikkim LJ 12 : AIR 1981 NOC 122, referred to by Mr. Udai P. Sharma, the learned Advocate for the petitioner, where this Court has relied inter alia on the Full Bench decision of the Allahabad High Court in Ramzam Ali v. Satul Bibi, AIR 1948 All 244 as an authority for the purpose. It is good that the law has been found to be so, for if orders refusing leave to sue in forma pauperis were not revisable, many more paupers would have been, to borrow from the observations of Krishna Iyer, J., in State of Haryana v. Darshna Devi, AIR 1979 SC 855 at p. 856, "priced out of the justice market by insistence of court-fee and refusal to apply the exemptive provisions of Order 33 of the Civil P. C., by the trial Courts", Krishna Iyer, J., observed further that "the Court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fees, is fully reviewed by this Court". In Kalawati v. Rupnarayan, AIR 1980 Sikkim 46 at p. 47, this Court referred to a Division Bench decision of the Calcutta High Court in Tarachand v. State, IR 1955 Cal 258 where Chakravartti, C.J., observed that by levying court-fees the State in fact sells justice. I should, however, note that while Krishna lyer, J., in the decision cited hereinabove, expressed his poignant feeling that, no State, it seems, has, as yet, framed rules to give effect to the benign provisions of the legal aid to the poor ... ... although several years have passed .. ... I should, however, note that while Krishna lyer, J., in the decision cited hereinabove, expressed his poignant feeling that, no State, it seems, has, as yet, framed rules to give effect to the benign provisions of the legal aid to the poor ... ... although several years have passed .. ... ..." and that "Parliament is stultified and the people are frustrated" in the State of Sikkim, however, some beginning has been attempted by the Sikkim Court-fees (Exemption and Miscellaneous Provisions) Act, 1983, where under it has been provided that "no court-fees shall be payable by a person whose annual income from all sources does not exceed rupees twenty thousand". 2. But this Act, though receiving the assent of the Governor on 4-4-1983, which is incidentally or coincidentally the date on which the impugned order was made, has been enforced on and with effect from 1-5-1983, that is, about a month after the impugned order was passed and, therefore, the provisions of this Act could neither be invoked by the plaintiff nor could be applied by the Court while making the impugned order. Before me also, neither the counsel for the petitioners, nor the counsel for the respondent, nor the Government Advocate has advanced any argument as to whether this Act of 1983, being an adjectival one, would or would not apply to pending proceedings also and would or would not enable the plaintiff to claim the benefit of its provisions exempting payment of court-fees. But even then I would have considered the question and would have requested the learned counsel for the parties to make their respective submissions on this question, if I were not satisfied that the impugned order by the learned District Judge granting the plaintiff leave to sue in forma pauperis is in perfect order and is unassailable in revision. 3. Rule 5 of Order 33 of the Civil P. C. provides for rejection of an application for permission to sue as a pauper in limine on certain grounds specified therein. 3. Rule 5 of Order 33 of the Civil P. C. provides for rejection of an application for permission to sue as a pauper in limine on certain grounds specified therein. Rule 6 provides that where the Court does not reject the application under Rule 5, it shall fix a day 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 Rule 7, however, provides that in spite of non-rejection of the application in limine under Rule 5, it is open to the opposite party to urge at the hearing under Rule 7 that on the face of the application and of the evidence, if any, recorded by the Court, one or more of the prohibitions specified in R.5 is or are attracted and that the application for leave to sue as a pauper is to be disallowed on that ground. No citation should be necessary for this too obvious a proposition which has also been stated by this Court in Kul Bahadur Thapa v. Kaziman Tamang, (1978) 2 Sikkim LJ 12 at p. 14: (AIR 1981 NOC 122) (supra) and the proposition is in perfect consonance with the principle of audi alteram partem which requires that any party affected by any order in any proceeding must be allowed an opportunity to be heard against such order. Since the non-rejection of an application by a Court under Rule 5 would obviously take place at a stage before the opposite party is served with any notice of the application, the opposite party, after appearance, must have reasonable opportunities to show that the application was liable to be rejected because of one or more of the prohibitions in Rule 5. Rule 7 (2) expressly incorporates such a provision and, therefore, in this case, in spite of the trial Court not having rejected the application in limine under R.5, it was open to the defendant-petitioner to urge at the hearing of the application under Rule 7 that the application was to be disallowed because of one or more of the prohibitions specified in Rule 5. 4. 4. The petitioners in this case, on receipt of the notice under Rule 6, filed an application in writing raising objections to the application of the plaintiff for permission to sue as a pauper, even though no objection in writing is necessary under the Rules. But on the date of the hearing of the application, as it would appear from the impugned order dated 4-4-1983, the petitioners-defendants were "found absent on repeated calls". Mr. Udai P. Sharma, the learned Advocate for the petitioners has, however, contended before me that notwithstanding such non-appearance of the petitioners in person or through counsel, the Court was under an obligation to consider the objections raised by them in their written objection and the trial Court has acted with material irregularity in not doing so. Under Rule 7(1), the Court is under an obligation to record the substance of the evidence adduced by the patties and, under Rule 7(2), is under an obligation to hear any argument which the parties may desire to offer. But it is difficult to understand that even if the opposite party does not appear in spite of notice and does not offer any argument against the maintainability or the merits of the application of the plaintiff for permission to sue as a pauper, how the Court can still be under any obligation to consider the objections raised by such non-appearing opposite party in his written objection. It is true, as pointed out by Chief Justice Sir Arnold White in an old decision of the Madras High Court in Amirtham v. Alwar, (1903) ILR 27 Mad 37 at p. 39 under the corresponding provisions of Section 409 of the preceding Civil P. C. of 1882 that while the Rule obliges the Court to consider argument if offered, it does not preclude the Court, even if no argument is offered, from considering whether the application of the plaintiff is subject to any of the prohibitions warranting its rejection. But the strenuous argument of Mr. Sharma notwithstanding, it is not possible to equate failure to do something which the Court is obliged to do and not doing something which the Court is not precluded from doing, but not required to do. 5. But the strenuous argument of Mr. Sharma notwithstanding, it is not possible to equate failure to do something which the Court is obliged to do and not doing something which the Court is not precluded from doing, but not required to do. 5. The impugned order and the evidence and other materials on record make it fairly clear that the learned District Judge has duly considered everything required to be considered in the light of the requirements of the provisions of Order 33. The learned District Judge has not granted the application filed by the plaintiff straightway simply because some sort of walk over was provided by the defendants by not appearing to contest the application. The learned Judge, notwithstanding such non-appearance of the defendants, has come to definite findings on the materials on record that the plaintiff "is a poor man not in a position to pay court-fees for this suit and that he has fulfilled the conditions as provided in law for getting permission ... .. ... to proceed with the suit as a pauper." 6. Mr. Sharma has very strongly relied on a Full Bench decision of the Allahabad High Court in Raj Narain v. Bhim Sen, AIR 1966 All 84 for the view that the trial Court should decide all objections regarding valuation of the reliefs and its jurisdiction, both pecuniary as well as relating to the subject-matter, while disposing of an application for leave to sue as a pauper. Rule 5, as it stood when this Allahabad case was decided, did not, and as it still applies in Sikkim, does not expressly refer to objections on the ground of valuation of the suit or the relief's claimed or as to the pecuniary jurisdiction or to the objections on the ground that the proposed suit appears to be barred by any law. In fact, Rule 5 as amended by the Allahabad High Court contained an Explanation providing that an application shall not be rejected merely on the ground that the proposed suit appears to be barred by any law. There is some difference of opinion among the High Courts as to whether the grounds mentioned in Rule 5 of Order 33 are exhaustive and whether the application for leave to sue as a pauper can be rejected on grounds other than those specified in Rule 5. There is some difference of opinion among the High Courts as to whether the grounds mentioned in Rule 5 of Order 33 are exhaustive and whether the application for leave to sue as a pauper can be rejected on grounds other than those specified in Rule 5. It may be that in view of the decisions of the Supreme Court in Vijai Pratap v. Dukh Haran, AIR 1962 SC 941, and in M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379, the Court would be entitled to reject the application for leave to sue as a pauper not only on the grounds specified in Rule 5 of Order 33, but on all grounds on which a plaint may be rejected and such an application may be equated with a plaint in a suit for various other purposes also, e.g., for the application of the provisions of Order 1, Rule 10 of Order 9, of Order 39 etc. In this case, in the written objection filed by the petitioners-defendants, objection to the application of the plaintiff for permission to sue as a pauper was taken on the grounds that the suit has not been properly valued, that the Court has no jurisdiction to entertain the application and that the application does not disclose any cause of action. As already noted, the defendants did not appear to press their objections, nor took any step to get the order set aside on showing sufficient cause for their non-appearance and as such the learned District Judge was under no obligation to decide the objections which the parties preferring them did not care to press and proceed with. But even that apart, I have not been able to discover anything in the application or on the records or in the submissions made by Mr. Sharma to show that the application does not disclose any cause of action or that the trial Court has no jurisdiction to entertain the same. But even that apart, I have not been able to discover anything in the application or on the records or in the submissions made by Mr. Sharma to show that the application does not disclose any cause of action or that the trial Court has no jurisdiction to entertain the same. As pointed out by the Supreme Court in Vijai Pratap v. Dukh Haran, AIR 1962 SC 941 at p. 944, (supra), the Court is only required to see as to whether, accepting the allegations as made in the application to be true modo et forma, there is a cause of action in the sense of there being a case for consideration and trial and it is not at all necessary for the Court to decide at that stage as to whether there is a case for a decree at the trial. And I have no doubt that, judged by that test, the application very clearly discloses a cause of action for the proposed suit. As to the objection relating to the valuation, apart from the fact that nothing has been brought to my notice to show that the valuation is wrong, the Court of the learned District Judge, where the application is pending, is a Court of unlimited pecuniary jurisdiction and under Section 15 of the Sikkim Civil Courts Act, 1978, the Court of District Judge has jurisdiction to take cognizance of all suits of a civil nature cognizable by Civil Courts, and, therefore, valuation, by itself, cannot affect its jurisdiction. 7. The revision accordingly fails and is dismissed. I must note that the plaintiffrespondent has been represented before me by Mr. A. Moulik, Advocate, who readily agreed to do so as amicus curaie on being requested by the Court. No order as to costs. Records to go down at once.