P L D 1960 (W (PLP)

Date of hearing : 20th November 1959. The admitted facts of the case are that Mst. Amna Begum applied for permission to sue her husband Nisar Ahmad as a pauper for the recovery of Rs. 11,000 alleged to be due to her as dower. The Court of Mr. D. Fazal‑ud‑Din, Insolvency Judge, Multan, did not at once reject the application under Order XXXIII, rule 5, Civil Procedure Code but fixed a date and issued a notice to Nisar Ahmad who resisted the application. Both the parties produced their respective evidence. The learned Judge, however, rejected the application on the 9th of October 1956 under Order XXXIII, rule 5, on the ground that it had not been presented in the manner prescribed by rules 2 and 3 of Order XXXIII, Civil Procedure Code, i.e., it was not presented by herself in person or if she was exempted from appearing in person by her authorised agent. Mst. Amna Begum did not go up on revision against this order but filed a second application on the 7th of November 1956 on exactly the same ground. This application has been rejected by the learned Senior Civil Judge, Multan, on the ground that it is barred by the provisions of rule 15 of Order XXXIII. Mst. Amna Begum has come up on revision to this Court against this order.

2. Order XXXIII, rule 15, may, with advantage, be reproduced below in verbatim :‑-- "An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent. application of the like nature by him in respect of the same right to sue ; but the applicant shall be at liberty to institute 4 suit, in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the Provincial Government and by the opposite party in opposing his application for leave to sue as a pauper". It is clear from the wording of this rule that the second application is barred only if the learned Court has passed an order refusing to allow the earlier application to sue as a pauper.

3. According to the scheme of Order XXXIII, an application for permission to sue as a pauper has to be presented to the Court by the applicant in person unless he is exempted from appearing in Court in which case the application may be presented by an authorised agent who can answer all material questions relating to the application. After the application is duly presented, the Court may, if it thinks fit, examine the applicant or his agent, as the case may be, regarding the merits of the claim and the property of the applicant. Under Order XXXIII, rule 5, the Court must reject an application (1) if it is not framed and presented in the manner prescribed by rules 2 and 3, or (2) where the applicant is not a pauper, or (3) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or (4) where his allegations do not show a cause of action, or (5) where he has entered into any agreement with reference to the subject‑matter of the proposed suit under which any other person has obtained an interest in such subject‑matter. Under Order XXXIII, rule 6, where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day after giving ten days' clear notice to the‑ opposite party 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. Under Order XXXIII, rule 7, on the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses, if any, produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. Thereafter the Court has to hear arguments which the parties may desire to offer on the question, whether on the face of the application and of the evidence, if any, taken by the Court, the applicant is or is not subject to any of the prohibition specified in rule

5. It is certainly very amazing that whereas under rule 6, evidence can be led by the parties on the question of pauperism of the applicant alone, under this rule, arguments can be addressed on the basis of the evidence with regard to all the prohibitions specified in rule

5. After deciding this, the Court shall then either allow or refuse to allow the applicant to sue as a pauper‑ Strictly speaking and keeping in view the wording of Order XXXIII, rule 15, a second application is only barred when an order refusing to allow the applicant to sue as a pauper is passed and not when the application is rejected. It is clear that Order XXXIII, rule 15, is a penal provision and should, there?fore, be strictly construed. When, therefore, the Court passes an order rejecting an application and that order is allowed to stand by the opposite party, then that order will not prevent the applicant to file second application on the same ground. It will be wholly wrong to attempt to put such a wide construction on the wording of rule 15 so as to read "refusing to allow" as including "rejection".

4. It is argued that after the notice is issued to the other side, then the Court cannot reject the application but should pass an order allowing or refusing to allow the applicant to sue as a pauper. Where, therefore, it is contended that the Court in such circumstances passes an order rejecting the application, the Court should be taken to have refused to allow the applicant to sue as a pauper to operate as a bar for second application under Order XXXIII, rule 15, Civil Procedure Code. The interpreta?tion which the petitioner wants me to put on the order of the learned Insolvency Judge is palpably unjust and would revolt the mind of any reasonable man. I think the difference lies in the language in which the Court deciding the first application expresses his mind. There may be cases in which enquiry has been fairly exhaustive and the Judge thinks that no further enquiry should be allowed in the matter. In such a case he may pass an order refusing to allow the applicant to sue as a pauper in which case the second application will be barred under rule

15. There may, however, be cases in which enquiry has not been exhaustive for some formal defect in the application or for some other reason even on merits of the application, then even though notice has been issued to the other side and both parties have B produced their evidence, the Court may still pass an order rejecting the application in which case rule 15 will not come into play, as a bar to the second application. I am, therefore, of the opinion that if a Judge thinks that the second application should be barred, then he should pass an order refusing to allow the application and it is not necessary for him to say that the application is rejected. But when he passes the order rejecting the application, then, in my view, it is clear that he manifestly intends that the second application should not be considered as barred.

5. The authorities on the subject are extremely conflicting and it is probably because the language of Order XXXIII itself is very obscure and vague. The view which I have taken is supported by a Full Bench of the Allahabad High Court in case Ramzan Ali v. Mst. Satul Bibi reported in (A I R 1948 All. 244). In this case the facts were that one Kallu, who was the owner of considerable property, died on the 15th of November 1950, leaving behind a widow, a son and three daughters as his heirs. The daughters executed a relinquishment deed by which they gave up all their rights in their father's property in favour of their brother, Ramzan Ali. About a year later, one of the daughters made an application under Order XXXIII,, Civil Procedure Code, for permission to sue as a pauper against her brother and her two remaining sisters challenging the relinquishment deed. Notices were issued in the application to the Government as well as to the respondents. The applicant was examined and cross‑examined and it appeared from the cross‑examination that the petition presented to the Court had not been properly verified and signed by the applicant as required by rules 2 and 3 of Order XXXIII. The Court consequently dismissed the application on the ground that it was not maintainable. He, however, made it perfectly clear in the order that the application was not rejected on merits. Two years later, the same lady filed a second application to sue as a pauper with regard to the same relinquish?ment deed. An objection was taken to this application thatit was barred by Order XXXIII, rule 15 of the Code on account of the dismissal of the previous similar application. The trial Court rejected this objection. As a result thereof, the opposite party came on revision to the Allahabad High Court. The learned Judges on these facts came to the following conclusions:‑-- "Rules 6 and 7 of Order XXXIII must be confined in the question of pauperism and there is no bar to a Court rejecting an application under rule 5 if it finds that the application is not properly signed or presented as required by rule 2, even after it has issued notice. Rule 15 lays down that an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue. This obviously means that if it has once been held that the applicant is not a pauper then he cannot have the matter reagitated with respect to the same cause of action. "Hence where an application to sue as a pauper has been rejected not on merits but on the ground that it had neither been duly signed nor duly verified by the applicant as required by rule 2, a second application by the same applicant to sue as pauper in respect of the same right to sue is not barred under rule 15 even if notice had been issued to the opposite party under rule 6".

6. I have only been able to find one case from the former Lahore High Court which has some bearing on this question and it is Mst. Bal Kaur and others v. Shib Das reported in (56 I C 207). In this case Abdul Raoof, J. held that where an application for leave to sue as a pauper is rejected on the ground that it is not accompanied by a schedule of the property belonging to the applicant, a subsequent application is not barred under rule 15 of Order XXXIII of the Civil Procedure Code. From the body of the judgment it is quite clear that the notice was issued to the other side although the application was rejected without recording any evidence. The learned Judge made a reference to a Calcutta case of Atul Chandra Sen v. Raja Peary Mohan Mookerjee reported in (33 I C 812), and tried to distinguish it on the ground that while in that case the evidence was taken on both sides in the case before the learned Judge it had not gone beyond the stage of appearance of the parties. The Calcutta case, however, with all respect to the learned Judges who decided it, does not seem to lay down a sound law. They seem to have completely misread the provisions of Order XXXIII. The facts of the case were that the applicant had applied once before to sue in forma pauperis on which the parties were summoned and evidence of both sides recorded. It was found that the applicant had made a false statement and the Judge, therefore, rejected the application basing his decision firmly upon rule 2, namely, that he had not furnished the particulars required with regard to the plaint. The learned Judges observed in the course of the judgment as under:‑-- "The question, therefore, narrows itself to this namely, whether the rejection under rule 5 (a) in all cases is free from the bar laid down in rule

15. We do not think that it is, and no authority has been shown to us to enable us to find that it is. It has been held in numerous cases that on the rejection of an application for leave to sue as pauper the only course open to the applicant is to institute a suit in the ordinary way. (No authority has, however, been cited in the judgment). There is no distinction between rejection under rule 5 and an order of refusal under rule

7. The only exceptions which are to be found in the decided cases in the Courts are such cases as these, where the Court has not passed the order of refusal or rejection but merely returned the application to have the question of pauperism tried by a Court of concurrent juris?diction, or where it has struck off temporarily the application for default by non‑appearance". It is clear from these observations that the learned Judges failed to notice the word "rejected", occurring in rule 5 and the words "refuse to allow the applicant", occurring in rules 7 and

15. This authority was, however, not followed by the same Court in Rajendra Nath Paramanik v. Tushtamayee Dasee (145 I C 602). In this case it was held that Order XXXIII, rule 15, Civil Procedure Code, applied only when the application for leave to sue as a pauper is refused under Order XXXIII, rule 7 and did not apply when such an application is rejected before the stage in which an order under Order XXXIII, rule 7, can be passed is reached. While discussing the above case, the learned Judges observed that the same Judges who had decided Alul Chandra Sen and others v. Raja Peary Mohan Mookerjee had decided another case Kedar Nath Ray v. Tula Bibi (10 C W N 104) in which they had given the opposite opinion, but had made no reference to it in the later judgment.

7. The view which has been taken by me in this case also finds support from the‑ Madras High Court in case Krishnayya v. Polepeddi Ramayya and others reported in (96 I C 962). The learned Judges held that where an application to sue in forma pauperis is rejected under Order XXXIII, rule 5 (a), Civil Procedure Code, a second application is not barred by the provisions of rule 15 which contemplate an inquiry and dismissal of the application on the merits. The view has a further support from the Rangoon High Court in case Masein v. Makya Hmyin reported in (98 I C 26). The opposite view has been taken by the Nagpur Judicial Commissioner's Court in case Baliram Shukul Brahmin v. Mst. Sita Bai Shukul reported in (157 I C 294), but in this case the application was dismissed after contest. I am, however, unable to agree with the observations made by the learned Additional Judicial Commissioner that under rule 7 of Order XXXIII it is not open to the Court merely to reject the application under rule 5 as the stage contemplated by that rule is passed when once notice is issued to the other side and there is an enquiry. In my opinion the Court can reject an application under Order XXXIII, rule 5, Civil Procedure Code, even after issuing notice to the other party and recording evidence. 1f the intention of the Legislature was to shut out the Court to reject an application under Order XXXIII, rule 5, after it had issued notice to the other side, then nothing was easier for it than to say that the Court shall, after hearing arguments, either allow or refuse the application to sue as a pauper. It was not at all necessary for the Legislature to, say in sub‑rule (2) that the Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in rule

5. A Court can dispose of an application for permission to sue as pauper before as well as after issuing notice, amongst other things, that it is not framed and presented in the manner prescribed by rules 2 and 3 of Order XXXIII. It will certainly be illogical and unjust to say that while a second application will be entertain able if the application is disposed of on this ground before the notice is issued, but not when it is disposed of on the same ground after the issue of the notice. It is a well‑established principle of law that a statute should be construed so as to avoid the patent injustice. The Legislature is presumed not to lay down any law which is on the face of it illogical and inconsistent. A parallel example exists in the case of the plaints. It can be rejected before C summoning the other side on the grounds mentioned in Order VII rule 11 of the Code of Civil Procedure. Now, supposing the 'D defendants are summoned and on the objection raised by the defendants the Court thinks that the plaint should be rejected under this provision of law and passes an order accordingly, can E it be said that a second suit is barred simply because the order rejecting the plaint has been passed after summoning the defend?ants. In my view, the answer has to be in the negative. The same principle would apply to the provisions made under Order XXXIII. After an application for leave to sue as pauper is made, a Court must first examine the applicant or his agent, as the case may be on formalities laid down in law as well as on merits and if it finds that it should be rejected under rule 5, it must proceed to do so. But if it issues notice to the other side and allows the parties to produce the evidence and it is pointed out to him that the application is subject to the prohibition laid down in rule 5, then, in my opinion, the Court can still reject the application under rule 5 or may refuse to allow the application under the concluding paragraph of rule 7 as the exegencies of the case permit. To my mind, the opinion of some of the learned Judges that the rejection of application under Order XXXIII, rule 5, is not rejection on merits, seems to be, with utmost respect to them, erroneous. Except the first prohibition in rule 5 which relates to the contents of the application and the manger in which it is, to be presented, the rest of the prohibitions, i.e., whether the applicant is pauper or not or whether he has within two months next before the presentation of the applica?tion disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper etc,, contemplate an enquiry though from the petitioner alone and rejection on merits. The Court can exercise the same power as under this rule after be has issued notice to the other side and has examined evidence of both the parties. He can still dispose of the application if he finds that on the face of the application, the application is or is not subject to any of the prohibitions of rule

5. The words "on the face of the application" are in my judgment very material. They clearly indicate that the Court can even at the final stage reject the application, or go deep into the application and allow or refuse to allow the applicant 'to sue as a pauper. If he adopts the former course then the second application will not be barred, if the latter, it will be barred. The difference though verbal is very much substantial. In this view of the matter then I think the order of the learned Court in dismissing the applica?tion was bad in law because the former application was rejected and the learned Court had not passed an order refusing permission to the applicant to sue in forma pauperis. The case is, therefore, to go back to the trial Court for deciding the application on merits. The costs will follow the event. K. M. A.????????????????????????????????????????????????????????????????????????????????????????????? Case remanded.