P L D 1968 Lahore 423 (PLP)

Farrukh Ameen for Respondent. Date of hearing: 10th April 1967. Abdul Rauf, petitioner, divorced his wife Mst. Khalida, the respondent. She applied under Order XXXIII of the Code of Civil Procedure for permission to sue the petitioner for the recovery of Rs. 31,190.00 as a pauper. This application was contested by the petitioner. Mr. Bashir Ahmad, Senior Civil Judge, Multan, by his order dated the 14th of November 1964, permitted the respondent to sue the petitioner as a pauper. He has challenged the aforesaid order through this revision petition under section 115 of the Code of Civil Procedure.

2. It is contended on behalf of the respondent that a revision is not competent under section 115 of the Code against an order granting leave to sue in forma pauperis, for the reason that the decision is not a "case decided". He relied on B. B. & C. I. Ry. Co. v. Mitthu (AIR 1931 All. 659) where it was held that the revision did not lie. The same view was taken in Sundar Das v. Mst. Narain Devi (87 P R 1912) and Maratab All v. Madan Lal (A I R 1934 Lah.295). The case‑law was reviewed in Sardar Hari Chand v. Durga Devi (A I R 1941 Lah.128). By expressly overruling Sundar Das v. Mst. Narain Devi it was held: "The proceedings on an application for permission to sue as a pauper are anterior to, and independent of, the suit fan order under rule 7 of Order XXXIII, whether it grants and or rejects the application, terminates those proceedings and is a `case decided' within the meaning of section 115, and is open to revision on any of the grounds mentioned in that section." The same view had earlier been taken in Firm Bhajan Ram Gil Raj Mal v. Mst. Narain Devi (A I R 1926 Lah. 642) ; Hari Krishna Datta v. K. R. Khosla (A I R 1934 Lah. 231); Sadaqat Ali Khan v. Muhammad Sajjat Ali Khan (A I R 1929 Lah. 257); Venkatakrisnaya v. Sayamma (A I R 1926 Mad. 958); Bihari Sahu v. Sudama Kuer (A I R 1938 Pat. 209); Ma Ma Gale v. Ma Mi (A I R 1931 Rang. 318); Durga Prasad v. Gur Dularey (A I R 1938 Oudh 146) ; and Bai Chandan v. Chhotalal Jekisondas (A I R 1932 Bom. 584). Similar view was taken in Ram Dulari v. Alian Bibi (A I R 1942 Oudh 240). In Ramzan Ali v. Satul Bibi (A I R,1948 All. 244) it was held that an order granting an application for leave to sue in forma pauperis is a "case decided". It is now well established that there is no basic or fundamental distinction between the cases where permission to sue in forma pauperis has been granted and the cases where it has been refused. At the stage when such an order is passed under rule 7 of Order XXXIII of the Code, there is no plaint and consequently no suit, because under section 26 a suit is only instituted by the presentation of a plaint. The proceedings on an application for permission to sue as a pauper really constitute a separate case. These proceedings are registered separately as applications. In case of refusal of the application, if payment of Court‑fee is made, a suit will be registered. If, however, the permission is granted to sue as a pauper, the application comes to an end and the petition is registered as a plaint in the suit. All these proceedings are before the commencement of the suit and they are, therefore, not interlocutory proceedings, and where there is an order allowing or rejecting an application to cue as a pauper, it is a "case decided". The revision against an order granting or refusing to grant permission to sue in forma pauperis is competent provided other conditions laid down in section 115 are satisfied, namely, that the Court exercised a jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material) irregularity. In these circumstances, I see no force in the objection raised on behalf of the respondent.

3. It is contended by the learned counsel for the petitioner that under rule 3 of Order XXXIII of the Code of Civil Procedure, the application has to be presented to the Court by the applicant in person and since she did not do so, it merited to be rejected. The application was presented by Abdul Latif, father of the respondent, as her special attorney and by Ch. Abdul Latif, her Advocate. It was contended that they had not been authorised by her to present the application. He relied on Mst. Inderwati v. Hari Ram (1) where it was held by Addison and Din Muhammad, JJ: "where an agent is authorized B by a power‑of‑attorney only to conduct an appeal, such agent has no power to file application for leave to appeal in forma pauperis, on behalf of the applicant pauper and presentation thereof by him is not proper." The facts of the present case, however, are different. She executed a power‑of‑attorney in favour of her father Abdul Latif. It is clearly stated in the said power‑of‑attorney that she was a pardanashin lady and had authorized her father as her attorney to present the application to the Court for obtaining leave to sue as a pauper. She also gave a similar power to her counsel, Ch. Abdul Latif. He also contended that since she was not to present the petition in forma pauperis in person, she should have mentioned in the application itself that she was a pardanashin lady and could not appear in Court for that reason, and that since she failed to mention this fact, the application should have been dismissed. In Chapter I‑B of the High Court Rules and Orders, Volume V, it is laid down that no such application shall be received from any person other than the alleged pauper, unless it appears on the face of the application that the alleged pauper is a person who is exempt under section 132 of section 133 of the Code from personal appearance in Court. In the appli cation, the petitioner has stated in paragraph 1 that she was a pauper and she, therefore, was seeking the permission to file a suit in forma pauperis. There is no averment in the petition that she was a pardanashin lady. This, however, should make no difference in the present case because the petition is accompanied by another application by her in which she has stated that she was a pardanashin lady and since she was unable to make appearance in the Court in person, she had authorised her father who was her attorney and Ch. Abdul Latif who was the counsel to file the petition on her behalf in forma pauperis. In clause (A I R 1937 Lah. 318) of section 132 of the Code it is provided: "Women who, according to the customs and manners of the zountry, ought not 'to be compelled to appear in public shall be exempt from personal appearance in Court. This section exempts a pardanashin lady from personal appearance. The respondent being a pardanashin lady could not be compelled to appear personally in Court. An order directing a pardanashin woman to appear personally in Court would be in breach of her right of exemption under section 132 of the Code. It was held in Sundar Devi v. Dattatraya (A I R 1933 All. 551) that such an order would be against the provisions of clause (1) of section 132 of the Code and, therefore, illegal. In Rahimannessa Bibi v. Sk. Halim (A I R 1928 Cal. 814) it was held that section 132 "recognizes the right of ladies who are behind the parda according to the custom of the country to require that their evidence, if necessary, should be taken on commission. This is a right which the Court has no power to deny". The same view was taken in Faiz Bibi v. Shafi Muhammad (P L D 1955 Sind 368). The petition in this case was presented by her duly authorised agent and it fully satisfied the requirements of rule 21 of Order XXXIII. This rule, however, should not be meticulously interpreted against the respondent. After all, the Code is not designed as a trap which a litigant must try to avoid by all means in his power but is designed to enable the Court to ascertain the real points in issue between the parties and come to a speedy and clear determination of those points.

4. Learned counsel for the petitioner assailed the order of the trial Judge also on the ground that he decided the question of the respondent being pauper without recording any evidence. A perusal of the record shows that he gave opportunity to the parties to lead evidence and actually the commission was also issued for some of the witnesses of the petitioner who were in Karachi. Since the commission was not returned and the case was being delayed, the Court ordered that the parties should prove their respective cases by affidavits. Neither the petitioner nor the respondent objected to the order of the learned trial Judge. They put in the affidavits which were considered by the Court in deciding the application of the respondent. The petitioner did not desire the production of any of the deponents for cross‑examination. The Court, therefore, could not reject the affidavits when the petitioner had not asked for the attendance of the deponents for cross‑examination. In Shib Sahai v. Tika (A I R 1942 Oudh 350) it was held. "It is open to a Court on sufficient grounds to allow proof of facts by means of affidavits. Therefore in an application by the plaintiff for setting aside a dismissal of his suit for default, the affidavit filed by him along with his application can be used as evidence of the facts alleged therein and it cannot be rejected merely because there had been a verbal denial by the defendant without any attempt to controvert it by a counter‑affidavit or without asking for the attendance of the plaintiff for the purpose of cross‑examination." In Vinayak v. Sheshadasacharya (A I R 1945 Bom. 60) it was held: "Under the provisions of Order XIX, rule 1 no doubt it is open to the Court to allow a fact to be proved by affidavit, but where either party bona fide desires the production of the witness for cross‑examination and such witness can be produced, it is not open to the Judge to allow the matter to be proved by affidavit." It is thus clear that the evidence has to be recorded viva voce in Court the parties, however, may agree to disperse with that procedure and may prove the facts by affidavits. If, after the affidavits are filed, any party desires that a witness should be produced for cross‑examination, he must be produced for the purpose because otherwise the facts stated in the affidavit cannot be used as a proof of any fact. If, however, the party does not challenge the allegations in the affidavit and does not ask for the production of a witness for cross‑examination, the facts stated in the affidavits, if the Court is otherwise satisfied about their truth, can be used as a proof of certain facts.

5. The petitioner has failed to show any illegality or material irregularity in the proceedings of the lower Court or the order passed by it. While I hold that this Court has jurisdiction to entertain a petition for revision of an order granting an application to sue in forma pauperis, I find no ground for interference with the order in this case. The petition fails and is dismissed, leaving the parties to bear their own costs. A.H. Petition dismissed.