Patna High Court
Raghurai Singh And Anr. vs Mst. Sitapati Kuer And Ors. on 20 April, 1954
Equivalent citations: AIR1955PAT257, 1954(2)BLJR412, AIR 1955 PATNA 257
JUDGMENT Chaudhary, J.
1. This application In revision by the plaintiffs-applicants is directed against an order of the Subordinate Judge, Third Court, Patna, dated 22-11-1952 whereby he rejected the petitioner's application for permission to sue in forma pauperis.
2. Plaintiff 1 Raghurai Singh had two other brothers Firangi and Ramjatan. Kedar, the third son of Ramjatan is plaintiff 2 on the allegation that he is the adopted son of plaintiff 1. Mst. Sitapatikuer the widow of the predeceased son of plaintiff 1, is defendant 1 in the suit, and the descendents of Firangi and Ramjatan are defendants 2 to 7 in the suit. The plaintiffs brought the suit for declaration of their title to recovery of possession and partition of their shares in the land in suit. As, according to the case of the plaintiffs, they had no means to pay court-fee for the suit, they filed an application under the provisions of Order 33, Civil P. C. for permission to sue in forma pauperis. The learned Subordinate Judge took the vew that since the plaintiffs were being backed by Mathura Singh one of the sons of Ramjatan Singh, they are not entitled to be permitted to sue as a pauper and in that view of the matter, their application was rejected.
The fact that the petitioners are paupers has not been contested; as a matter of fact, learned Counsel appearing for the opposite party in this Court has conceded that for the purpose of this case the plaintiffs will be taken to be paupers That being the position, it has to be seen whether the application of the petitioners to sue in forms pauperis could be rejected on the ground given by the learned Subordinate Judge.
3. Mr. Sarwar All, who appeared for the petitioners in this case, has raised two points. His first contention is that Rule 5, Order 33 is exhaustive and does not contemplate the ground on which the learned Subordinate Judge has rejected the application to be a ground on which permission could be refused to sue in forma pauperis. In support of his contention he has placed reliance on the case of -- 'S. E. Orde v. Mrs. T.C. Deacon', AIR 1952 All 582 (A), but a Bench decision of this Court in -- 'Jaikishun Dass v. Ram Narain', AIR 1939 Pat 385 (B), has taken a different view. It was held in that case that Rule 5, Order 33, Civil P. C., merely states a series of circumstances, any of which, if proved compels the Court to reject the application; and it is by no means exhaustive. In view of the decision of this Court the contention raised on behalf of the petitioners has to be rejected.
4. The next contention raised by learned Counsel is that the learned Subordinate Judge has taken a mistaken view of the law in rejecting the prayer to sue as a pauper on the ground that Mathura Singh was the real man behind this litigation. On the other hand, learned Counsel appearing for the opposite party has contended that where the plaintiffs are really backed by others, who could finance the plaintiffs in this litigation, an application to sue in forma pauperis should not be allowed. In support of this contention reliance has been placed on -- 'Charu Sila Dasi v. Haran Chandra', AIR 1919 Pat 58 (C); and 'AIR 1939 Pat 385 (B)'. Even the learned Subordinate Judge has based his decision on these two Cases.
5. In the first case, namely, AIR 1919 Pat 58 (C), it was found as a fact that the plaintiff was a benamidar for her husband who was a clerk in Government service and that therefore the allegations in her plaint showed no cause of action. In that view of the matter, it was held in that case that it could not have been the intention of the Legislature that a litigant fully able to comply with the terms of the fiscal law should by setting up a pauper as his nominee, be entitled to evade the claims of the State and the effect of permitting a benamidar to sue as a pauper would be to give a person who is not a pauper the right to evade the fiscal law; and to infringe the provisions of Rule 5(e), Order 33. This case, therefore, has no application to the present case. In the second case namely, AIR 1939 Pat 385 (B), it was found that certain persons set up the plaintiff as a Mahanth of certain Math and got the suit instituted through him as a pauper, and it was held that the suit was one filed by the plaintiff as a nominal plaintiff and the supporters were to derive substantial advantages. In view of that finding it was held that the plaintiff could not be permitted to sue in forma pauperis. That case also, therefore, has no bearing to the facts of the present case.
6. The present case seems to be much more similar to the case of -- 'Dhananjai Prasad v. Rajkeshwar Singh', AIR 1947 Pat 34 (D). In that case a minor aged about 8 or 9 years filed an application to sue as a pauper as being the adopted son of defendant 1 to set aside a deed of gift executed by defendant 1 and his wife defendant 2. There was a prayer for confirmation of possession and, in the alternative for recovery of possession aver the properties covered by the deed of gift. The petition was rejected on two grounds one of which was that the petitioner's step brother and natural father were helping him in the litigation and were well able to pay the necessary sum. In that case also reliance was placed by the lower Court on AIB 1939 Pat 385 (B). It was held in that case that that case had no application to the case under consideration and that the reason given by the Court below for rejecting the application on that ground was wrong. Their Lordships, however, under the revisional power interfered with that order not merely on that ground but on some other ground also with which I am not concerned in the present case. On the authority of the case reported in AIR 1947 Pat 34 (D), there is no room for doubt that the learned Subordinate Judge took a wrong view of the law in rejecting the application on the ground that Mathura Singh was behind this litigation.
7. The next question that has to be considered is whether this Court can interfere in revision under Section 115, Civil P. C. A Bench decision of this Court in -- 'Mt. Rajwanti Kuer v. Rambhawan Rai', AIR 1954 Pat 63 (E), has recently laid down the principle which supports the interference by this Court with such an order. It has been held there as follows :
"It is true enough to state that revisional jurisdiction under Section 115 cannot be invoked in a case. Where there is a mere error of law or a mere error of fact in which the question of jurisdiction is not involved. But there is authority for the proposition that if upon mistaken view of law or upon mistaken view of fact a Court had invested itself with jurisdiction not vested in it by law or if the Court had failed to exercise a jurisdiction so vested there is a case made out for revision under Sub-section (1) or Sub-section (b). of Section 115, Civil P. C. that is the view expressed by the Judicial Committee in -- 'Joy Chand Lal v. Kamalaksha Chaudhury', AIR 1949 PC 239 (P), in which it was pointed out :
'There have been a very large number of decisions of Indian High Courts on Section 115, to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a Subordinate Court does not by itself involve that the Subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under Sub-section (c) nevertheless, if the erroneous decision results in the Subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so Vested, a case for revision arises under Sub-section (a) or Sub-section (b) and Sub-section (c) can be ignored'."
I am, therefore, of the opinion that the Court below has failed to exercise its jurisdiction vested in it by taking a wrong view of the law and the order cannot be maintained.
8. In the result the application succeeds and the order of the learned Subordinate Judge is set aside and the plaintiffs are permitted to proceed with the suit in forma pauperis. The petitioners are entitled to their costs : hearing fee Rs. 16.
9. It may be noted that the learned Subordinate Judge passed his order without waiting for the report of the Deputy Collector on the question of pauperism of the petitioners. I am however informed that subsequent to the order the report was received showing that the petitioners are paupers.