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Report No. 54

Recommendation to insert Order 33, rule 5(dd)

33.23. The Madras amendment is, in our view, preferable. If a suit is barred by any law, there is no point in granting permission to sue as a pauper. Of course, border-line cases could occur; but the power to reject could be confined to cases where it is clear from the allegation in the application that the suit is barred. We recommend, therefore, that the following should be added as clause (dd), in Order 33, rule 55

"(dd) where his allegations show that the suit would be barred by any law for the time being in force; or".

Appeal against order under Order 33, rule 5

33.23A. We are of the view that an order under Order 33, rule 5, rejecting the application, should be made appealable,1 since the order followed to stand, would prevent the applicant from enforcing his right to sue.

1. To be carried out under Order 13, rule I(nn).

33.24. Order 33, rule 7, prescribes the procedure to be followed at the hearing of an application for permission to sue as an indigent person. It says-

"7. (1) 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.

(2) 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 (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in rule 5."

This rule, thus, turns back to rule 5.

33.25. Under Order 33, rule 5, a Court shall reject an application to sue in forma pauperis on any of the five grounds mentioned therein. These relate to-

(i) The form and presentation of the petition: rule 5(a);

(ii) The pauperism of the applicant: rule 5, clauses (b), (c) and (e);

(iii) The merits of the petitioner's claim: rule 5, clause (d).

33.26. Now, the inter-relationship of rule 7 and rule 5 of Order 33 is of interest. First, so far as rule 5(a) goes, a perusal of the petition is sufficient to see whether the prohibition applies, so that the examination under rule 7 will not relate to it. Secondly, as regards pauperism of the applicant, rules 6 and 7 provide for the adducing of evidence by the applicant as well as by the Government and by the opposite party. The examination under rule 7 is, therefore, certainly directed at pauperism. Clauses (b), (c) and (e) of rule 5 broadly relate to that question of pauperism. So a full enquiry in the points mentioned in those clauses has to be held.

Thirdly, as regards cause of action, i.e. rule 5, clause (d), there is a difference of opinion among the various High Courts as to the material that a Court has to make into account in determining whether there is a subsisting cause of action or not. The conflicting views on the subject are summarised below. The question which could arise in practice is1 "Whether it is open to the Government Pleader or an opposite party duly served with a notice under Order 33, rule 6, or rule 7 to file an objection or to adduce evidence or to present an argument that the applicant for leave to sue in forma pauperism has not complied with the provisions of Order 33, rule 5(d), and/or whether at an inquiry under rule 7 it is competent for the Court to determine whether the applicant has complied with the provisions of rule 5(d)."

1. Cf. U Ba Dive v Mg. Lu Plan, AIR 1932 Rang 101(110)(FB).

33.27. All the High Courts seem to agree that a Court should not, under rule 7, embark upon an elaborate enquiry regarding the merits of the petitioner's claim. But, as to what should form the basis for a decision on the point whether the petitioner has a cause of action or not, at least three views can be gathered from the decisions

(i) The first view is, that only the petition can be looked into for this purpose and nothing else. This view found favour in a Madras case.1 But the difficulty with this view is that rule 4 gives a discretion to the Court to examine the applicant as to the cause of his action. If any statement made by the applicant in the examination cannot be acted upon by the Court then it is not easy to see why a Court should be invested at all with such a discretion.

No doubt, the word "allegations" in rule 5(d) may seem to lend some support to this view, but the word should not be regarded as material on the above point. The second view is, that a court can take evidence regarding the petitioners cause of action. This view was taken by in a decision of the Patna High Court,2 though a later case takes a different view. It is, however, opposed to the scheme of the Order. The evidence that can be adduced after notice to the opposite party, should relate (as laid down by rule 6) only to the pauperism of the petitioner.

(iii) The third view (which is a middle between the two extremes mentioned above) is, that a Court can rely upon the allegations in the petition and the statements of the petitioner made by him during his examination under rule 4, if any, by the court. This view is shared by several High Courts.3 But there is again a difference of opinion regarding the scope and nature of the examination of the petitioner under rule 7. Some Courts4 held that his examination under rule 7 should not be related to the cause of action but only to his pauperism, while others express the opinion5 that his examination under rule 7 may be with reference to the cause of action as well.

1. Ratnam Pillai v. Pava Pillai, (1903) 13 MU] 292 (FB).

2. Charu Sila v. H.C. Mukerji, AIR 1919 Pat 58 (59) (DB).

3. (a) Jogendra v. Durga Charan, AIR 1919 Cal 385;

(b) Bai Chandan v. Chhota Lal, AIR 1932 Boni 584 (585) (Rangnekar, J.);

(c) U Ba Dive v. Mg. Lu Plan, AIR 1932 Rang 107 (FB).

4. (a) Bai Chandan v. Chhota Lal, AIR 1932 Born 584;

(b) U Ba Dive v. Mg. Lu Plan, AIR 1932 Rang 107 (112) (Majority view).

5. (a) U Ba Dive v. Mg. Lu Plan, AIR 1932 Rang 107 (111, 112) (Majority view). (b) Jogendra v. Durga Charan, AIR 1919 Cal 385 (388).

33.28. In the Bombay case, it was observed1-

"It follows, therefore, that the materials for forming an opinion whether the applicant has a subsisting cause of action or not, or to use the words of rule 5(d) whether "his allegations do not show cause of action" are (1) the application, and (2) the evidence of the applicant under rule 4 or rule 7. Then, under rule 7(2), the Court has to hear arguments if any offered on the face of (a) the application, and (b) the evidence (if any) taken, that the applicant is or is not subject to any of the prohibitions specified in rule 5.".

1. Bai Chandan v. Chhote La!, AIR 1932 Born 584 (585) (Rangnekar, J.).

33.29. It is, of course, not open to the Court to hold an elaborate inquiry into the question whether the claim made by the petitioner is likely to succeed. In ascertaining where there exists a "cause of action", the court cannot go into complicated questions of fact or law1.

1. Vijai Pratap v. Dukh Horan, AIR 1962 SC 941 (943), para. 9.

33.30. The most sensible view (which is practically the same as the Bombay view)1 seems to be, that (i) under rule 7, a court may examine the applicant touching the 'cause of action'; (ii) that when he is so examined, the opposite party has a right to cross-examine him under rule 7; and (iii) that a court may take the result of such examination together with any examination under rule 4 and the allegation in the petition in deciding whether the prohibition mentioned in rule 5(d) applies or not; (iv) but the other witnesses cannot, under rule 7, testify for, or against, the existence of the cause of action; (v) however, the court can give a decision both on pauperism and on the cause of action (or any other prohibition mentioned in rule 5).

1. Bai Chandan v. Chhotelal, AIR 1932 Born 584, (Rangnekar, J.).

33.31. Since Order 33, rule 6, specifically mentions that the evidence to be taken should relate only to the question of pauperism of the petitioner, it is desirable, by a slight amendment of rule 7, to provide that the examination of the petitioner (as distinct from the evidence of other witnesses), can extend to the cause of action also. It is also desirable to provide for a full record, in view of our proposal for appeal1 against orders, rejecting the application for permission to sue as a pauper.

1. See discussion below.

The Code of Civil Procedure, 1908 Back

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