P L D 1969 Dacca 666 (PLP)

Mr. M. A. Rouf in his turn has also cited some decisions. Whatever the effect of the decisions it seems to us that the very language of Order XXXIII, rule 9 is sufficiently clear to clinch the issue. Order XXXIII, rule 9 of the Code of Civil Procedure runs thus: ‑ "

9. Dispaupering the Court may, on the application of the defendant, or of the Government Pleader, of which seven days' clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered‑ (a) if he is guilty of vexatious or improper conduct in the course of the suit; (b) if it appears that his means are such that he ought not to continue to sue as a pauper ; or (c) if he has entered into any agreement with reference to the subject‑matter of the suit under which any other persons has obtained an interest in such subject‑matter." Commenting upon the above provisions, it appears that the scope of the Court in the matter is rather limited. First of all it has been stated the Court "may" and it has again been stated that "on the application of the defendant, or of the Government pleader" which leaves little scope for the Court to get going by itself. Then again of such application of the defendant or the Government Pleader seven days clear notice in writing has to be given to the plaintiff. Even when these requirements have been satisfied the Court may dispauper only in the cases expressly mentioned in (a), (b) and (c) above. Here it may be noted that there is no quarrel as to whether it comes under (a), (b) or (c) but the quarrel is as to whether the Court could suo motu dispauper as has been done, in this case. We do not find any trace of any application by the defendant or of the Government Pleader, far from there being seven days' notice in writing as required. What is more, we find that the learned Subordinate Judge has dispaupered in the course of the suit when there was not even any proceeding under Order XXXIII, rule 9 of the Code and that also when the evidence was closed and a date was fixed for hear ing the argument. The learned Subordinate Judge was actually sitting in judgment over and questioning the validity of the paupering order dated 20‑9‑65, while trying the suit itself. The language of the section makes it clear that the course adopted by the learned Subordinate Judge is altogether unwarranted. The decision in the Agent, B. N. Railway Co. Ltd. v. Duvvu Venkataswami and another (45 C W N 551) indicates that the question of court -fees was primarily a matter between the Crown and the plaintiff and it was not the business of the Court to go out of its way in dispaupering. The same case also shows the importance of the processes in the main part of Order XXXIII, rule 9 of the Code which has to be fulfilled before making an order thereunder. The relevant observations are: ‑ "From one point of view, it may be said that the Court attached more importance to form than to substance for it is clear that even if the payment of the Provident Fund money could not be taken into consideration for the purpose of deciding the original application, this could still found an application under rule 9 of Order XXXIII,, C. P. Code to dispauper the plaintiff after leave to sue as a pauper had been granted. If the Court was satisfied that there were sufficient materials on which the plaintiff could be dispaupered, there is no reason therefore, why it could not make such an order in anticipation ‑by straightaway refusing the leave asked for. At the same time, it might be urged on the other side that in that case there should have been at least a formal application under rule 9 asking that in the event of the Court being disposed to grant the leave, the plaintiff should be dispaupered in view of the subsequent acquisition of property, and that such application was necessary, if for no other reason than to give notice to the plaintiff of the case he would be called upon to meet at this stage. The present case itself illustrates the prejudice which might otherwise result to the plaintiff." Some light in the matter is also found from the decision in Anangabhusan v. Ghanashyam Patro and another (A I R 1951 Orissa 349) wherein it was observed that "where the defendant in spite of notice to him, does not appear at the date of hearing of the application of the plaintiff for leave sue as a pauper and the Court passes an order under Order XXXIII, rule 7, granting such leave, the defence will not be allowed subsequently to come to Court with an application under Order XXXIII, rule 9, for dispaupering the plaintiff, on the ground that the means "of the plaintiff at the commencement of the suit were such as to enable the plaintiff to continue the suit. Such an application is maintainable only when the plaintiff acquires such means subsequent to the order under Rule 7." It was also observed in the same decision that: ‑ "Some omission of certain properties from the inventory submitted by the plaintiff will not necessarily amount to active concealment and thus to vexatious and improper conduct in the course of the suit." The two decisions, as above, seen to indicate in favour of the petitioner. We can now advert to the Single Bench decision of Sivarama Aiyar v. Ahilambal Animal as referred to by Mr. A. T. Sadi. It seems that in that case "a person suing as pauper entered into an agreement with another agreeing that he would repay that person the sums advanced and to be advanced by him with interest for the conduct of the litigation or in default would sell a share of the property which was the subject‑matter of the litiga tion." It was held "that the interest created by such agreement was covered by Order XXXIII, rule 9 and as such the person suing as pauper should be dispaupered". Now that is not a decision on the main part of Order XXXIII, rule 9 itself. It is only on the subject‑matter that is whether such an agreement came under (a), (b) and (c) of the order. This decision does not say that the Judge will act on his own when he discovers fraud by setting at naught the provision of the main part of order XXXIII, rule 9 of the Code of Civil Procedure. Moreover, the facts of the decision show that there was a proceed ing under Order XXXIII, rule 9 of the Code of Civil Procedure in that case whereas in the present case there was on such proceeding at all and the order of the learned Subordinate Judge came in the process of the hearing of the suit itself. This decision therefore, does not help Mr. Sadi's case that the learned Subordinate Judge took the right course in the matter. In these circumstances, we cannot uphold the order impugned and hereby set aside the same and direct that the present pauper Suit No. 83 of 1965 be tried on merits in forma pauperis. The rule is therefore, made absolute without any order as to costs. MAHMUD HOSAIN, J.‑I agree. K. B. A. Rule made absolute.