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Report No. 144

9.3.2. Question for consideration.-

The question, therefore, arises whether rule 5 is exhaustive of the circumstances in which an application could be rejected, or whether the return or rejection of the application can be ordered outside the rule-for example, where the court does not have jurisdiction-and the case dealt with in Order 7, rule 10, of the Code.

9.3.3. The High Court of Patna1 has taken the view that consideration of the question of jurisdiction would arise only after the application is registered as a plaint. The Patna High Court proceeds on the reasoning that the application is not a "plaint" and does not reach the stage of a plaint until the application is duly granted. Order 33, rule 5, gives no authority for returning the application for want of jurisdiction, according to this view.

1. Mohammed Abbas Mallik v. Tahera Khatoon, AIR 1974 Pat 324 (326, 327), paras. 5, 6 (DB) dissenting from:

(a) Periyasami v. Ulaganathan Minor, AIR 1949 Mad 162;

(b) Prem Singh v. Sat Ram Das, AIR 1958 Punj 52 (Bhandari, C.J.);

(c) Madhura Krishnamurthy v. Ramamurthy, AIR 1957 AP 654;

(d) Raj Narain v. Bhim Singh, AIR 1966 All 84.

9.3.4. On the other hand, the High Court of Kerala has held that such an application can be returned for presentation to the proper court.1 The Kerala High Court proceeded on the reasoning, first, that Order 33, rule 5, is not exhaustive and, secondly, that an application for permission to sue as an indigent person is not merely an application pure and simple but it must also contain the particulars required in regard to plaints.

1. V. Sreedharan v. T.T. Nany, AIR 1987 Ker 249 (251), paras. 8 & 9 (DB).

9.3.5. The Kerala High Court has also relied on the Supreme Court case of Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SU 941, wherein the following observations occur:-

"An application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper, is not established, the application may fail The suit commences from the moment an application for permission to sue in forma pauperis as required by Order XXXIII is presented, and Order 7, rule 10, would be as much applicable in such a suit, as in a suit in which court fee had been duly paid."



Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back




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