P L D 1957 Dacca 448 (PLP)

ISPAHANI, J.‑

This Rule arises out of a petition for permission to file a suit in forma pauperis, which was allowed by the Sub‑ordinate Judge, Jessore, on the 10th November 1954. The Rule was issued on ground No. 1 of the petition which reads as follows: "For that the learned Subordinate Judge acted in the exercise of jurisdiction with illegality and material irregularity in allowing the application without considering the fact that the plaintiffs‑petitioners (Opposite Parties in the Hon'ble Court) suppressed substantial properties in contravention of the requirements of law for which their application is liable to be thrown out." The opposite parties filed a petition for permission to sue as paupers stating that they were possessed of wearing apparel valued at Rs. 68 only. No mention was made in that petition of any other movable or immovable properties. It appears that, at the hearing, the present petitioner Company contended that the applicants were possessed of at least three immovable properties, and it has been held by the learned Subordinate Judge that in respect of property measuring 3.28 acres, which was transferred to applicant No. 3 by her husband for a consideration of Rs. 500, the said applicant acquired good title to the same though she was not in possession of this property. As regards other properties, the finding was in favour of the applicants. Mr. M. H. Khondkar, who has appeared on behalf of the petitioner Company, has contended that inasmuch as the provisions of rule 2 of Order XXXIII of the Code of Civil Procedure were not complied with, the learned Subordinate Judge acted in the exercise of jurisdiction with illegality and material irregularity in allowing the application without consi dering the fact that the applicants had deliberately suppressed all other properties from the petition to sue as pauper. He has contended that the applicants had deliberately suppressed the fact that they had other properties, and, because of this defect, the petition to sue in forma pauperis should have been thrown out. Rule 1 of that Order defines a pauper to be a person who is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject‑matter of the suit, Rule 2 deals with the contents of the application to be filed by the applicant. The rule states that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. Mr. Srish Chandra Dutta, appearing for the opposite parties, has submitted that under rule 2 it is enough if the applicants mentioned only such properties which were in their possession, and this they had done, and it was not necessary to mention any other properties, movable or immovable, in which the applicants had interest. He has, therefore, contended that as the applicants had mentioned the wearing apparel, which were in their possession, in the petition that complied with the requirements of rule

2. This contention we are unable to accept because rule 2 provides that a schedule of any movable or immovable property with the estimated value thereof shall be annexed to the petition. The word "belonging" includes not only properties movable or immovable in possession, but also properties in which the applicants have some interest. Thus it is clear in the present case that rule 2 has not been complied with. Rule 5,1 clause (a), provides that the Court shall reject an application for permission to sue as a pauper where it is not framed and l presented in the manner prescribed by rules 2 and

3. The learned Subordinate Judge should, therefore, have rejected the application to sue in forma pauperis. In this connection we may also mention that it was elicited from applicant No. 3 that the applicants were possessed of other movable properties. These are stated in paragraph 5 of the petition to be equipments of their business of Jahangir Bros., such as, weights and scales, chairs, tables and almirahs of that Firm. These have also not been mentioned in the petition. In the affidavit‑in‑reply in paragraph 8, the applicants state that the price of the said articles was so small and insignificant that it was not worth mentioning. They, however, have taken care not to mention their total price however low it may be. The petition is defective for the non‑inclusion of these articles as well. Mr. M. H. Khondkar has referred to certain authorities. In Kuppuswami Naidu v. Varadappa Naidu and others (A I R 1943 Mad. 1). It was held that in an application for leave to sue in forma pauperfs, the utmost bona fides is required of the petitioner in the matter of the disclosure of his or her assets, and any intentional departure from good faith, whatever the motive might be, must attract the consequence of a dismissal of the petition, because under Order XXXIII, rule 2, read with Order XXXIII, rule 5(a), it is the bounden duty of the petitioner to make a full and accurate verified statement about his properties. The fact that even if the suppressed assets were disclosed, it would not affect the question of pauperism, is not relevant. This ruling was followed in Chellammal v. Muthulakshmi Ammal (A I R 1.945 Mad. 296). These rulings apply to the facts of the present case, and we, accordingly, hold that the learned Subordinate Judge acted in the exercise of jurisdiction with illegality and material irregularity in allowing the application, for the reasons stated above. The Rule, accordingly, is made absolute and the order of the learned Subordinate Judge, dated the 10th November 1954, is set aside, and the prayer to sue as a pauper is disallowed. Mr. Srish Chandra Dutta has submitted that, as a question of limitation may arise, his clients may be given some time to pay requisite Court fees. The lower Court. accordingly, is directed to give Mr. Dutta's clients one month's time for this purpose from the date of arrival of the records in the trial Court. There will be no order as to costs of this petition. BADIUZZAMAN, J.‑

I agree. Z. A. S Rule made absolute.