P L D 1960 (W (PLP)

Mian Fazal Ilahi for Respondent. Date of hearing: 12th May 1960. The facts leading up to this revision petition are that on the 11th of March 1957, Mst. Zubeda Khatun, the present respondent, applied for permission to bring a suit against the present petitioner in forma pauperis. Notice was eventually issued to the defendant and the petition was contested on the grounds that the schedule of property was incomplete, there having been concealment of assets, and that the plaintiff was not a pauper. The case was fixed for evidence on the 21st of October 1958 and the defendant summoned a bank clerk with the plaintiff's account. On that date, her counsel asked for time to make up the deficiency in court‑fee, amounting to Rs. 937‑8‑0, and time was granted up to the 8th of January 1959. On the 6th of January, Mst. Zubeda Khatun filed a second application t9 sue in forma pauperis. She repudiated the action of her counsel in asking for time to make up the deficiency in Court fee, alleging that she had never been consulted in the matter. Notice of the application was issued to the defendant for the 9th of March 1959, and the following issues were framed :‑‑ (1) What is the effect of the statement of counsel for the petitioner upon this petition ? (2) Is the petitioner a pauper and unable to pay the court‑fee ? If so, what is the effect of the previous statement made by Mr. Inayat Ullah, counsel for the petitioner ? (3) Is the present petition not competent ?

2. By order dated the 25th of February 1960, the learned Senior Civil Judge granted the application. On issues Nos. 1 and 3, which were decided together, his decision appears to be that as the previous application was not rejected, the state ment of learned counsel neither barred the continuance of the proceedings nor was binding on the plaintiff. On issue No. 2, it was held that even assuming that the plaintiff had deliberately suppressed information with respect to a sum of Rs. 521‑6‑0, standing to her credit in the Shalamar Road Post Office Savings Bank on the date of filing the petition, she still had not sufficient means to pay the court‑fee, and was consequently a pauper.

3. Against the above order of the learned Senior Civil Judge, the defendant came up to this Court in revision.

4. The most important objection raised by the petitioner to the order under revision is that as the second application by the plaintiff to sue in forma pauperis was barred by Order XXXIII, rule 15 of the Code of. Civil Procedure, the Court had no power to entertain it, and consequently exercised a jurisdiction not vested in it by law in doing so. Although the matter is not free from difficulty, this contention of the petitioner appears to have considerable substance, but before proceeding further it is necessary to determine the effect of the action of learned counsel for the plaintiff‑respondent in asking for time to make up the deficiency in court‑fee. The action in question clearly amounted to conceding that the plaintiff was not a pauper; and as the question of whether she was or was not a pauper is one of fact, the implied admission of learned counsel is A binding on the plaintiff, even if, as she alleges, it was made without instructions from her, an allegation open to considerable doubt. In this connection I find it very difficult to believe that any responsible counsel, whose client had applied to sue in forma pauperis, would ask for time to make up the deficiency in court‑fee unless he had clear instructions in that behalf, but however that may be, learned counsel for the petitioner points out that the power of attorney Ex. P. 1 gave to Mr. Inayat Ullah full authority to make any statement on the plaintiff's behalf. The respondent relies on Budhu Ram v. Uttam Chand (A I R 1928 Lah. 726) in which it was held that an admission, if gratuitous, can be withdrawn at any time and that, therefore, such a confession, though against the interest of the party making it, is of little value. I confess I fail to see the relevance of this authority to the facts of the present case.

5. It being held that the admission of learned counsel was binding on the plaintiff‑respondent, it is next to be seen whether the granting of time to make up the deficiency in court‑fee amounted to a refusal to allow the plaintiff to sue in forma pauperis within the meaning of Order XXXIII, rule 7 (3) C. P. C. In Mst. Amna Begum v. Nisar Ahmad (P L D 1960 Lah. 159), it was held by Muhammad Shafi, J. that a second application for permission to sue in forma pauperis 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 under Order XXXIII, rule 5, C. P. C., and that as Order XXXIII, rule 15, is a penal provision it should be strictly construed. With respect, I agree with the above principle, and if it can be held that the granting of time to make up the deficiency in court‑fee amounted only to a rejection of the application to sue in forma pauperis under Order XXXIII, rule 5, and not to a refusal covered by Order XXXIII, rule 7, the second application will not be barred. Unfortunately for the plaintiff, however, it is well settled that an application to sue in forma pauperis can only be "rejected" within the meaning of Order XXXIII, rule 3, C. P. C. before notice has issued to the opposite‑party under rule

6. It is true that a contrary view appears at first sight to have been taken in Ramzan AU v. Mst. Satul Bibi (A I R 1948 All. 244) in which it was held that where an application to sue as a pauper has been rejected, not on the merits but on the ground that it had neither been duly signed nor duly verified by the applicant as required by rule 2 of Order XXXIII, C. P. C. the second application by the same applicant to sue as a pauper in respect of the same right to sue is not barred under rule 1 5 even if notice had been issued to the opposite‑party under rule 6, but I am respectfully of the opinion that the ratio decidendi is the distinction existing between those cases in which the application could have been rejected under rule 5 without issuing notice, and those in which the decision of the Court is based on the examination of the witnesses and the appli cant and the arguments of the parties, and could not, for want of the necessary data, have been arrived at before the issue of notice. In the Allahabad case above cited the reason for the rejection of the application was, as already pointed out, the absence of the signature and verification required by Order XXXIII, rule 2, C. P. C defects apparent on the face of the record. In the present case, on the other hand, counsel for the plaintiff only asked for time after notice had been issued to the other party and the document Exh. R. 1, showing that on the date of the application the plaintiff had a sum of Rs. 521‑6‑0 standing to her credit in a savings bank, was before the Court at the instance of that party. Although, therefore, it is unfortunate that the trial Court did not pass any express order refusing to allow the plaintiff to sue in forma pauperis. C the granting of time must be construed as such a refusal.

6. In the light of the above, the second application by the plain tiff to sue in forma pauperis was clearly barred by Order XXXIII, rule 15, C. P. C. and in entertaining it the learned Senior Civil Judge exercised a jurisdiction not vested in him by law, his order being consequently open to revision by this Court.

7. The other objection of learned counsel for the petitioner, namely, that the first application of the plaintiff was liable to rejection under Order XXXIII, rule 5, C. P. C. in consequence of the plaintiff's concealment of the account standing to her credit in the Post Office Savings Bank, is also by no means, without force since, as held in Chellammal v. Muthulakshmi Ammal (A I R 1945 Mad. 296), under Order XXXIII, rule 2, read with Order XXXIII, rule 5 (a) and Order XLIV, rule 1, C. P. C. it is the bounden duty of the petitioner applying for leave to sue or appeal as a pauper to make a full and accurate verified statement of his or her properties ; that the utmost good faith is required of the petitioner in the matter of the disclosure of his or her assets ; and that any intentional departure from good faith, whatever the motive may be, must result in the dismissal of the petition. It is further laid down in the same case that where the petitioner obtained leave to appeal in forma pauperis by practising fraud on the Court by not disclosing all of his assets the leave must be cancelled. In the present case, the circumstances leave no doubt that the schedule of property filed by the plaintiff in support of her first application was incomplete. It can, therefore, be reason ably argued that in failing to appreciate the effect on the second application of the above concealment the learned Senior Civil Judge acted with material irregularity in the exercise of his jurisdiction.

8. For the above reasons, I accept the revision with costs and set aside the order of the learned Senior Civil Judge. The plaintiff should be given a reasonable time to make up the deficiency in court‑fee, failing which her suit will stand dismissed. K.B.A. Petition accepted.