Patna High Court
Mohammad Abbas Mallik vs Tahera Khatoon And Ors. on 8 November, 1973
Equivalent citations: AIR1974PAT324, AIR 1974 PATNA 324, ILR (1974) 53 PAT 787 1974 BLJR 226, 1974 BLJR 226
Bench: N.L. Untwalia, Nagendra Prasad Singh
JUDGMENT Untwalia, C.J.
1. The opposite par-tics filed an application under Order 33, Rule 1 of the Code of Civil Procedure (hereinafter called the Code) for permission to sue in forma pauperis. The sole defendant in the suit is the petitioner in this civil revision application. Opposite Party No. 1 is his wife and Opposite Parties 2 and 3 are their children. The suit is for maintenance. The petitioner resisted the application filed by the opposite parties, inter alia, on the ground that the Court at Biharsharif had no jurisdiction to try the suit and, consequently, the application, as the parties were married at Patna and not at Biharsharif. The petitioner wanted the learned Subordinate Judge, in whose Court the application was pending, to decide the point of jurisdiction as a preliminary issue. The Court below, following certain decisions, took the view that at the stage of deciding the pauperism of the plaintiffs-petitioners the issue as to jurisdiction could not be decided. The defendant has come up in revision.
2. The issue as to jurisdiction on the ground of lack of pecuniary jurisdiction or territorial jurisdiction is of the same kind. It means objection to the place of suing within the meaning of Section 21 of the Code. At some stage or the other the issue has got to be tried out; but the question for consideration is whether the issue should be tried out before the plaint is regularly admitted in accordance with Order 33, Rule 8 of the Code or whether it should be tried thereafter.
3. There is a direct Bench decision of this Court in Gupteshwar Missir v. Chaturanand Missir, AIR 1950 Pat 309. B.P. Sinha, J., (as he then was), with whom Raj, J., agreed, on a consideration of various decisions, expressed the view at page 311, column 1--
"............ it was not open to the Court below to go into the question of valuation of the property, so as to determine the preliminary issue of jurisdiction, because that is a matter which arises only after the application has been granted and the application treated as a plaint, in answer to which the defendant has to raise his pleas in bar of the suit or of the jurisdiction of the Court".
The correctness of this decision was doubted by a Full Bench of this Court in Matuki Mistry v. Kamakhya Prasad. ATR 1958 Pat 264 (FB). But since the Full Bench was concerned with a different point, it did not finally consider whether the Bench decision in Gupteshwar Missir's case was correct or not, and naturally it did not overrule it. Learned Counsel for the petitioner has placed reliance upon a Full Bench decision of the Allahabad High Court in Raj Narain Saxena v. Bhim Sen, AIR 1966 All 84 (FB). where, after referring to the fact of the doubling of the correctness of the Bench decision of this Courl in Gupteshwar Missir's case in the Full Bench decision in Matuki Mislry's case, the Allahabad High Court did not agree with the Bench decision of this Courl and took a contrary view. In the Allahabad case, to resist the pauper application, an issue as to jurisdiction had been raised on the ground of valuation as also on the ground that the suit would be barred by the Zamindari Abolition and Land Reforms Act. The Full Bench of the Allahabad High Court decided that such issues of jurisdiction could be decided and should be decided even at the stage of deciding the pauper application. Whether the objection as to jurisdiction is taken on the ground of lack of pecuniary jurisdiction, as was in the case of Gupteshwar Missir or on the ground of territorial jurisdiction, as in the instant case, makes no difference. It is. therefore, clear that unless we feel persuaded to take the view that the Bench decision of this Court was wrong, we are not bound to follow the Allahabad decision; rather, the Bench decision is binding on us. If we would have taken the view that the decision was wrong, we would have been under the necessity of referring this case to a larger Bench. But since we respectfully agree with the Bench decision of our Court, we proceed to follow it as we are bound to do.
4. The concept and ambit of an application filed in accordance with Rules 1 to 3 of Order 33 has been the subject-matter of consideration in various decisions of the Privy Council, the Supreme Court and the High Courts. Rule 1 enables a pauper to institute a suit. But the pauper has to file an application for permission to sue as a pauper and such an application has to contain, under Rule 2, the particulars required in regard to plaints in suits and. over and above that, other matters mentioned in that rule to show that the applicant is a pauper. After presentation of the application in accordance with Rule 3, the Court may examine, if it thinks fit, the applicant under Rule 4. Order 33, Rule 5 enjoins the Court to reject an application for permission to sue as a pauper where the application is not framed and presented in the manner prescribed by Rules 2 and 3, or where the applicant is not a pauper, or where he has fraudulently disposed of the property within the meaning of Clause (C), or where his allegations do not show a cause of action, or he has entered into any champer-tous agreement. Rejection of an application on the ground of lack of territorial or pecuniary jurisdiction is not provided for in Rule 5. Nor is it provided therein that if the suit instituted or proposed to be instituted by the pauper is barred by limitation, the application should be rejected under Rule 5. In the Explanation appended to Section 3 of the Indian Limitation Act, 1908. which provision is now contained in Section 3 (2) of the Limitation Act, 1963. a suit is instituted in the case of a pauper, when his application for leave to sue as a pauper is made. It would thus be seen that presentation of an application containing all the statements which are required to be made in a plaint becomes a plaint instituted for the purposes of the Limitation Act on the date when such an application is filed. In Matuki Mistry's case AIR" 1958 Pat 264 (FB), the Full Bench of this Court was concerned with the question whether an order of temporary injunction could be made during the pendency of an application for permission to sue in forma pauperis before the plaint becomes admitted under Rule 8 of Order 33 of the Code. The answer given was that the plaint stands instituted in view of Section 26 of the Code on the day the application for permission to sue in forma pauperis is filed. Even in the nineteenth century it was decided by the Privy Council in the case of Stuart Skinner v. William Orde, (1878-1880) ILR 2 All 241 (PC) that the petition to sue in forma pauperis was a composite document containing the plaint and the prayer for permission to sue as a pauper. Choudhary, J., delivering the judgment of the Full Bench has pointed out in Matuki Mistry's case that even under the present Code the same view has been taken in many decisions.
5. What is to be emphasised at this Stage, however, is that in absence of a provision in 'Rule 5 for rejection of an application on the ground of limitation divergent views were expressed by the various High Courts, some Hieh Courts taking the view that the application could not be rejected on the ground of limitation and some High Courts expressed contrary views. Various High Courts amended Order 33, Rule 5 and added a clause empowering the Court to reject an application for permission to sue in forma pauperis under Rule 5, where the suit appeared to be barred by any law. Such a course has not been taken by the Patna High Court and no amendment in Rule 5 has been made. The amendment was necessitated because Section 3 of the Limitation Act enjoined the Court to dismiss a suit which was barred by limitation. But yet Rule 5 did not expressly say so in regard to an application for permission to sue in forma pauperis. It is to be pointed out that return of a plaint on the ground of lack of jurisdiction under Order 7, Rule 10, is quite distinct from rejection of a plaint under Rule 11. Rejection of a plaint is appealable as a decree, while an order returning a plaint is an appealable order under Order 43, Rule I (a). Rule 5 of Order 33 does not provide for return of a pauper application on the ground of lack of jurisdiction of the Court to entertain the suit. It is further to be pointed out that under Rule 6 of Order 33 where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it has to 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. Notice has to be given under Rule 6 to the other side. The defendant is not required to file any written statement but merely adduce his evidence to resist the pauper application. After hearing the evidence and arguments as provided in Sub-rule (2) of Rule 7, the Court has either to allow the application or refuse to allow it. When the application is granted, it is numbered and registered and is deemed to be a plaint in the suit. If the application is rejected, then it becomes instituted on payment of necessary court-fees. In my opinion, therefore, both stand on the same footing. Allowing the pauper to sue in forma pauperis or allowing the applicant, if it is held that he is not a pauper, to pay the court-fee are in effect the same matter. Is it correct to say that the defendant can be allowed to raise the question of jurisdiction of the Court before the plaint is admitted on payment of proper court-fees ? Obviously not. Will it then be correct to say that the question of jurisdiction should be allowed to be raised by the defendant at the stage of deciding the matter of pauperism before formal admission of the plaint under Order 33, Rule 8? In my opinion, not. Question of return of plaint under Order 7, Rule 10 does not arise at the instance of the defendant unless the plaint is formally admitted. Of course, Order 7, Rule 10 provides that the plaint can be returned at any stage of the suit. If on the plaint as instituted, even on the statements made herein, it is found that the Court has no jurisdiction to try the suit, it may be returned for presentation to the proper Court, and that is perhaps the reason which led Sinha. J., to say in the case of Gupteshwar Missir. AIR 1950 Pat 309 at p. 312. column 1:
"The Court, in every case, is confined to the 'allegations' in the application. Hence, it is open to the Court if it can come to that conclusion on the allegations in the petition to hold that on these allegations, the matter was beyond its pecuniary jurisdiction".
One illustration thereafter has been given by the learned Judge. I may attempt to give another illustration of want of territorial jurisdiction. Supposing an application to sue in forma pauperis is filed in a Court at Patna to recover possession of a property, say, situated at Chapra, without any further statement to show how the Patna Court will have jurisdiction, obviously, such an application may be returned for presentation to the proper Court, not exactly under Order 7, Rule 10 of the Code but in exercise of the inherent power of the Court on the principles engrafted in Rule 10. I do not feel persuaded to agree with the observations of Desai, C. J., and I say so with very great respect that in absence of a provision for return of plaint under Order 7, Rule 10 the plaint could have been rejected on the ground of jurisdiction. I think, the plaint or an application has merely to be returned for proper presentation.
6. If the defendant is allowed to raise an objection as to the jurisdiction of the Court to try the suit at the stage of the trial of the pauper application, it will lead to various anomalies. The suit may be barred on any other account, as was the case before the Allahabad High Court. It was said to be outside the jurisdiction of the Court not only on the ground of lack of pecuniary jurisdiction, but also as being barred by the Zamindari Abolition and land Reforms Act. Similarly, some defendant may come and say that the suit is barred by res judicata and, as a logical corollary, therefore, he will have to be permitted' to raise this issue of res judicata at the stage of trial of the pauper application. As observed by Sinha. J., in the case of Gupteshwar Missir, AIR 1950 Pat 309, after the pauper application is allowed the question of jurisdiction may be tried and thereafter if the plaint is returned, the decision of the Court which allowed the pauper implication will not be binding on the pauper Court where a fresh application for permission to sue in forma pauperis may have to be instituted on account of the return of the plaint. But that contingency, by itself, cannot justify the taking of the view that question of jurisdiction or other questions barring the power of a particular Court to try the suit should be allowed to be raised at the stage of the trial of the pauper application. A learned Single Judge of the Madras High Court in Periyasami Padayachi v. Minor Ulaganathan, AIR 1949 Mad 162 had expressed a contrary view. Sinha. J., did not agree with him in Gupteshwar Missir's case. Bhandari, C. J., sitting singly, also appears to be of the view that the issue of jurisdiction can be tried at the stage of deciding the pauper application -- vide Prem Singh v. Sat Ram Das, AIR 1958 Punj 52. So seems to be the view of a learned Single Judge of the Andhra Pradesh High Court in Madhura Krishnamurthy Sastri v. Yerra Ramamurthi, AIR 1957 Andh Pra 654. For the reasons stated above, I respectfully differ from that view. For the purposes of making interlocutory orders, such as, appointment of receiver, interim injunction or directing an inventory to be made, it may be correct to say as has been said by the Full Bench of the Patna High Court in Matuki Mistry's case AIR 1958 Pat 264 (FB), that the suit was instituted on the date of the presentation of the application for permission to sue in forma pauperis. The same view has been expressed by the Supreme Court in Vijai Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941 that an application under Order 1, Rule 10 may be made at the stage of the pendency of the pauper application. Choudhary, J., doubted the correctness of the Bench decision of this Court in Gupteshwar Missir's case without due consideration, if I may say so with respect, of the difference between rejection of a plaint at the instance of the defendant and making an order of an interim kind at the instance of the plaintiff. Both cannot be equated and placed on the same footing. All kinds of pleas which may be raised by the defendant and which may defeat the plaintiff ultimately cannot be allowed to be raised at the stage of the trial of the pauper application. This is also evident from some observations of the Supreme Court in the case of Vijai Pratap Singh. I may also repectfully point out that I do not agree with the observation of Desai, C.J.. in Raj Narain Saxena's case ATR 1966 All 84 (FB) fat p. 89) paragraph 7, that a decision given by a Court which lacks pecuniary or territorial jurisdiction is a mere nullity. If I may say so with utmost respect, this is in the teeth of the provision contained in Section 21 of the Code and the well-established principles of Taw drawing a distinction between inherent lack of jurisdiction of a Court and lack of territorial or pecuniary jurisdiction. The Court which is in seisin of the pauper application has to decide first on the allegations made in that application as to whether that application should be allowed. Thereafter, the defendant may raise all sorts of pleas, including the plea of lack of pecuniary or territorial jurisdiction.
7. For the reasons stated above, this civil revision application fails and is dismissed. The Court below, however, is directed to decide the issue of jurisdiction immediately after the admission of the plaint under Order 33. Rule 8 of the Code or on payment of court-fees, as the case may be. On the facts and in the circumstances of this case, the issue of jurisdiction after admission of the plaint is fit to be and may be derided as a preliminary issue, even if some evidence may have to be taken for deciding the question of the place of marriage between the petitioner and opposite party No. 1 as to whether it took place at Patna or Bihar-sharif. Subioct to this direction, the application is dismissed, but there will be no order as to costs.
Nagendra Prasad Singh, J.
I agree.