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Report No. 27

Order XXXIII, rule I

A recommendation was made in the Fourteenth Report1, to the effect, that the Explanation to Order XXXIII, rule 1 should be amended so as to enable a person who is not entitled to property worth rupees one thousand to sue as a pauper, or "alternatively so as to define a pauper as a person who is not possessed of sufficient means, other than the subject-matter of the suit to enable him to pay the fee prescribed by law." It appears to be unnecessary to re-cast the whole Explanation in this manner. But certain modifications, which are summarised below, have been proposed:

(I) The amount of rupees one hundred is proposed to be raised to rupees one thousand;

(ii) In considering the question of sufficient means, the subject-matter of the suit (see Bombay Amendment) and necessary wearing-apparel are proposed to be excluded;

(iii) The question whether the date of presentation of the application or the date of its hearing should be the relevant date for considering pauperism, has been dealt with.

The decisions on the subject2-3-4 reveal a conflict of views. A provision has, therefore, been inserted to the effect that property acquired by the applicant after presentation of the petition and before decision of the application should be taken into consideration.

The Madras Amendment to Order XXXIII, rule 1, Explanation (iii) provides that where a plaintiff sues in a representative capacity, the question of pauperism shall be considered with reference to the means possessed by him in such capacity. It is considered unnecessary to make an express provision on the subject, though the correct position is that reflected in the Madras Amendment.

1. 14th Report, Vol. I.

2. G. Muddappa v. G. Rudramma, AIR 1921 Mad 97.

3. Bai Bal Gouri v. Moti Lai, AIR 1923 Born 247.

4. Provish Chandra v. Municipal Corporation, Hozvrah, AIR 1930 Cal 147 (149).

Order XXXIII, rule 3

Under the Allahabad Amendment, persons detained in prison are exempted from appearing personally for presentation of a pauper application. It is, however, considered unnecessary to adopt this amendment, as in its absence no practical difficulties have been felt.

Order XXXIII, rule 5

1. The Allahabad Amendment to Order XXXIII, rule 5(a) adds the words "and the applicant on being required by the court to make any amendment within a time to be fixed by the court, fails to do so". It is considered unnecessary to make an express provision on this point.

2. As regards suits barred by any law, the Madras High Court has added a clause (dl), under which the court shall reject the application where the suit appears to be barred by any law. As contrasted with this, the Allahabad High Court has inserted an Explanation to rule 5 to the-effect that an application shall not be rejected under clause (d) merely on the ground that the proposed suit appears to be barred by any law. It may be noted, that the existing language of rule 5(d)-"where his allegations do not show a cause of action" has been interpreted widely by the courts.1 It is therefore considered unnecessary to disturb the language of the rule.

1. Mulla Civil Procedure Code, (1953), p. 1065.

Order XXXIII, rule 6

The Madras Amendment to Order XXXIII, rule 6 expands the scope of the rule so as to allow evidence to be taken in respect of all the prohibitions specified in rule 5. This has been considered, and the provisions of rule 7(1) and rule 7(2) noted, whereunder the evidence is confined to pauperism though the arguments are not so confined.1 It is considered unnecessary to adopt the Madras Amendment, as such matter need not be raisedby way of evidence at this stage.

1. Cf. Mulla Civil Procedure Code, (1953), p. 1068.

Order XXXIII, rule 8 and interlocutory orders

Whether a temporary injunction (or attachment before judgment) can be issued during the pendency of an application for permission to sue as a pauper is not free from doubt. One view is that for the exercise of these powers, the suit commences on presentation of the application, while another view is that it commences only when the application is granted. The under-mentioned decisions1-2, take the first view.

1. Tota Ram v. Dattu, AIR 1943 Born 143 (144).

2. Channu Lal v. Shama, AIR 1955 Nag 259 (reviews case-law).

Cases taking a contrary view are cited below1-2

The question whether a provision to the effect that the court shall not be precluded from making any order under clauses (a) to (e) of section 94 during pendency of the application has been considered. As the problem may not occur frequently, no amendment is suggested.

1. Puma Chandra v. Tara Prasad, AIR 1917 Cal 852.

2. Thimayya v. Sadasivappa, AIR 1952 Mys 76.

Code of Civil Procedure, 1908 Back

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