Patna High Court
The State Of Bihar vs Ram Lakhan Prasad Sinha on 26 July, 1976
Equivalent citations: AIR 1977 PATNA 44
ORDER S.K. Jha, J.
1. This application by the State of Bihar is directed against an order dated 31-5-1975 passed by the 3rd Additional Subordinate Judge, Gaya, rejecting the application of the petitioner under Order 33 Rule 9 of the Code of Civil Procedure (hereinafter to be referred to as the Code) for dispaupering the Opposite Party.
2. The Plaintiff Opposite Party had filed money Suit No. 170/5 of 1968/75 in the Court of the 1st Subordinate Judge, Gaya, for damages to the tune of Rupees 15,000/- on account of certain alleged wrongful and malicious acts done by the officers of the State. The Opposite Party had also filed an application under Order 33, Rule 3 of the Code to prosecute that suit in forma pauperis on the ground that he had been declared insolvent by the court of the 1st Additional District Judge, Gaya. On 13-7-1964 the final order of discharge was passed in that insolvency proceeding. The trial Court allowed the prayer of the plaintiff opposite party and granted permission to him to sue in forma pauperis. It is curious to note that the Opposite Party also filed another suit, which was registered as money Suit No. 26 of 1969, again for damages to the tune of Rs. 25,000/- against the State of Bihar for loss of his reputation and mental agony. In the latter, suit also the Opposite Party prayed for permission to sue in forma pauperis. But by an order dated 30-5-1970 the learned Subordinate Judge, 1st Court, Gaya, after a thorough enquiry, having found that the plaintiff Opposite Party had got sufficient means to pay the court-fees, rejected the pauper application. Against the aforesaid order rejecting the pauper application, the Opposite Party moved this Court in revision and that case was registered as Civil Revision No. 701 of 1970. The order passed by the learned Subordinate Judge was affirmed by thus Court in the Civil Revision. It transpires that in course of the enquiry proceeding in money Suit No. 26 of 1969 with regard to pauperism of the plaintiff opposite party the petitioner learnt that the Opposite Party was possessed of properties -- both movables and immovables -- including a double storeyed pucca house in mohalla Horha within the Gaya municipality. As such on 19-12-1969 an application was filed on behalf of the petitioner before the learned Subordinate Judge, 1st Court, Gaya, for dispau-pering the plaintiff Opposite Party and a list of properties owned and possessed by the Opposite party was also given in schedules A and B of the aforesaid petition. That application has been rejected, at already stated above by the impugned order.
3. The only ground on which the application has been rejected is that the petitioner had not adduced any oral evidence nor filed any document in support of the fact that the plaintiff had sufficient property to pay the court-fee. The learned Additional Subordinate Judge had also observed in his order that, although it was submitted on behalf of the petitioner that in the suit of 1969 the Opposite Party had not been declared as pauper, and it has been held even by the High Court that he had sufficient means and was in a position to pay the Court-fee, the judgment of this Court in the aforesaid Civil Revision had not been placed on the records of the case and that there was no documentary or oral proof of the fact that the properties set cut in Schedules A and B to the application under Order 33 Rule 9 of the Code belonged to the Opposite Party.
4. Learned Government Pleader IV appearing on behalf of the petitioner placed reliance upon the statement in Paragraph 7 of the petition and assorted that the learned Additional Subordinate Judge had committed an error of record in observing that the judgment of this Court In Civil Revision No. 701 of 1970 had not been placed on the records of the case. Learned Counsel also produced a certified copy of the list of documents filed in the court below. That list clearly shows that the judgment of this court dated 14-1-1972 had actually been placed on the records of the case as a documentary proof. In my view, the submission made on behalf of the petitioner is well founded and the learned Additional Subordinate Judge has committed a grave error of record in stating in the impugned order that a copy of the judgment of this Court, which had upheld the order of the Subordinate Judge in the 1969 suit rejecting the pauper application of the Opposite Party, had not been placed before him. It is worthwhile to mention in this connection what was observed by Untwalia, J., as he then was, in Civil Revision No 701 of 1970--
"The application filed by the petitioner (plaintiff) under Order 33, Rule 1 of the Code of Civil Procedure for permission to sue in forma pauperis has been dismissed by the court below. After perusal of the impugned order which is a detailed one and after hearing learned counsel for the parties and on appreciation of the entire facts and circumstances of the case I have come to the conclusion that there is no error in the order of the court below refusing permission to the petitioner (plaintiff) to sue in forma pauperis."
As a matter of fact, the order of the learned Subordinate Judge in the 1969 suit, which had given rise to the aforesaid civil revision application, was also placed for my perusal and there were sufficient materials therein to indicate that the Opposite party had sufficient means to pay the court-fee. It was, therefore, obviously wrong on the part of the court below to have said that no proof--either oral or documentary -- had been adduced before it. This has clearly resulted in refusing to exercise its jurisdiction vested by law. This is one of those cases which is clearly covered by the provisions of Order 33, Rule 9 (b) of the Code, which lays down that the court may, on the application of the defendant or the Government Pleader, of which 7 days' clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered if it appears that his means are such that he ought not to continue to remain as a pauper. In the instant case the application under Rule 9 was made by the . Government Pleader on behalf of the State and it is also not in dispute that 7 days' clear notice in writing had been given to the Opposite Party. That being the position, as it appears from the materials on record, the plaintiff Opposite Party has sufficient means which ought not to permit the Opposite Party to continue to sue as pauper.
5. Learned Counsel for the Opposite Party, however, raised a technical objection to the maintainability of the application under Order 33, Rule 9 of the Code. It was contended on behalf of the plaintiff opposite party that the provision of Order 33, Rule 9, cannot be attracted once the pauper application had earlier been allowed and the plaint had been registered as a suit. In support of this contention, learned Counsel placed reliance on a Bench decision of the Orissa High Court in the case of Anangabhusan v. Ghanshyam Patro, (AIR 1951 Orissa 349). In that case it had been held that, where the defendant in spite of notice to him does not appear at the date of the hearing of the application of the plaintiff for leave to sue as a pauper and the court passes an order under Order 33, Rule 7 granting such leave, the defendant will not be allowed subsequently to come to court with an application under Order 33, Rule 9 for dispaupering the plaintiff on the ground that the means of the plaintiff at the commencement of the suit were such as would enable the plaintiff to continue the suit. Such an application can be maintainable only when the plaintiff acquires such means subsequent to the order under Rule 7. That case proceeds upon the logic that any order either interlocutory or final in its nature passed in presence of the parties should be taken as closing the controversy once for all for the purposes of the proceeding or the suit in which it is passed. The order may or may not be such on which a plea of res judicata can be based, but in order to avoid multiplicity of the proceedings some sort of finality has to be attributed to it. The Orissa case has further held that even some omission of certain property from the inventory submitted by the plaintiff will not necessarily amount to active concealment and thus to vexatious improper conduct in the course of the suit. But whether it is a concealment as distinct from mere omission is a question of fact, With great respect to the learned Judges deciding the Orissa case, I venture to say that such a construction of the provision of Rule 9, of Order 33, as has been sought to be put upon it by that judgment, cannot be held to be tenable without doing violence to the express language of the statutory provision. The very object and purpose of Order 33, Rule 9 of the Code is to reopen the matter of pauperism by filing an application for dispaupering a plaintiff who has already been granted permission to sue as a pauper. There cannot be any question of res judicata; so much has also been held by that Bench decision. But the finality which has been sought to be attached to an order granting permission to sue as a pauper is, in my opinion, fallacious. I am fortified in my view by a Bench decision of the Madras High Court in the case of Chellammal v Muthulakshmi Ammal, ILR (1945) Mad 628 = (AIR 1945 Mad 296). That case is an authority for the proposition that utmost good faith is required of the petitioner in a petition for leave to appeal in forma pauperis in the matter of disclosure of his or her assets. Any intentional departure from good faith, whatever the motive may be, must result in the dismissal of the petition. Under Order 33, Rule 2 read with Order 33, Rule 5 (a) of the Code it is the bounden duty of the plaintiff or petitioner to make a full and accurate verified statement of his or her property. That not having been done, the Madras High Court cancelled the leave granted in forma pauperis proceeding. To the same effect is the judgment of a learned single Judge of the Andhra pradesh High Court in the case of Sakhamani Anantha Padmanabha Pra-sad v. Addepalli Venkataramanaiah, (AIR 1969 Andh Pra 145). It has been held in that case that it is not correct to say that a person can be dispaupered only if he comes into possession of funds or property after the institution of the suit. If it is brought to the notice of the trial court that the plaintiff, when he filed an application for permission to sue as a pauper, was in possession of certain property or entitled to the same and could have, on the strength of this possession or right, raised the necessary funds for payment, of the court-fees and that matter was suppressed from the court, it would be a sufficient ground to dispauper such a plaintiff. I fully subscribe to the view taken by the Madras and the Andhra Pradesh High Courts in the two cases referred to above. Learned counsel for the opposite party sought to distinguish these two cases on the ground that there had been Madras and Andhra Pradesh amendments to Rule 5 (a) of Order 33. There is no substance in this submission. The Andhra Pradesh and Madras High Court amendments have merely substituted for Clause (d) of Rule 5 Clauses (d) and (d-1). Those two amended clauses read thus--
"(d). When the allegations do not show a cause of action, or (d-1). Where the suit appears to be barred by any law, or".
These amendments have not absolutely no bearing on the question at issue. Before I part with the case, I may also point out that even in the Orissa case referred to above it has been held that if it is a case of concealment, it stands on a different footing from the position where there is a mere omission and whether a case falls under one head or the other is a question of fact. In the instant case, from the materials on record it is manifest that there is an active concealment of declaration of the assets of the plaintiff opposite party. It is a fit case, therefore, in which the court below ought to have dispaupered the plaintiff opposite party.
6. For the reasons set forth above, I am constrained to allow this application and to direct that the plaintiff opposite party be dispaupered in money Suit No. 170/5 of 1968/75. This application is accordingly allowed. In the circumstances of the case, however, I shall make no order as to costs.