Report No. 54
Order 33, rule 1A (New)
33.15. We are of the view that inquiry into pauperism should ordinarily be made by the Chief Ministerial Officer1 of the Court.
Accordingly, we recommend that the following rule should be added in Order 33:
"1A. Inquiry into the question whether a person is an indigent person shall ordinarily be made by the Chief Ministerial Officer of the Court, unless the Court otherwise directs; and the decision of that officer shall, unless the court otherwise direct, be deemed to be the decision of the Court".
1. Cf. section 126(1)(j).
Order 33, rule 5(c)
33.16. There is a minor point to be considered concerning Order 33, rule 5(c). The rule is as follows:-
"5. The Court shall reject an application for permission to sue as a pauper-
(c) where he has, within two months next before the presentation of the application, disposal of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or
33.17. It may be noted, that under clause (c), the application is rejected on the ground of fraudulent disposition of property or disposition of property in order to be able to apply for permission to sue as a pauper. The assumption behind this rule is, that if the property had not been disposed of (within the specified period), then the applicant would have had sufficient means to pay the court fees. This, however, is not sufficiently brought out in the clause, because under the present wording, even where the property disposed of and the property still in possession of the applicant, taken together, is not sufficient for paying court fees, the application can be rejected. We think that this is rather harsh, and should be set right.
33.18. We, accordingly, recommend the insertion of the following proviso below rule 5-
"Provided that no application shall be rejected under clause (c) if, even after the value of the property disposed of is taken into account, the applicant would be entitled to sue as an indigent person within the meaning of rule 1 of this Order."
Order 33, rule 5(d).
33.19. Amongst the grounds on which an application for permission to sue as a pauper may be rejected, is the ground mentioned in Order 33, rule 5(d), namely, absence of a cause of action.
33.20. In the earlier Report,1 it was noted that the existing wording of Order 33, rule 5(d)-"where his allegations do not show a cause of action"-had been interpreted widely by the courts.2 The Commission considered it unnecessary to disturb the language of the rule, although it referred to the local amendment relevant to the rule.
1. 27th Report.
2. (a) See Baba Pawar v. Government, AIR 1955 All 415;
(b) Peramal, AIR 1941 Mad 398.
33.21. Since then, the Gujarat High Court has held1 that Order 7, rule 11 makes a distinction between failure to show a cause of action (on the one hand), and bar of limitation or of any other law (on the other hand). It was pointed out that the two ideas are quite distinct. "The bar of limitation does not destroy the cause of action, if any, but only bars the remedy." Therefore, it was held that the lower court was wrong in holding that the suit does not show a cause of action because it is time-barred.
1. Ramniklal v. Mathralal, AIR 1995 Guj 214 (Raju, J.).
33.22. This judgment makes it necessary to clarify the position. It may be noted that the Madras High Court1 has added a clause (d1), under which the Court shall reject the application for permission to sue as a pauper 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 this clause (d) merely on the ground that the proposed snit appears to be barred by any law.
1. As to the effect of the Madras amendment, see Annamalan (in re:), AIR 1956 Mad 677.