Manorama Dasi v. Sabita Dasi Opposite Party.

Sen, J.:— This Rule has been obtained by the Defendant against an order passed by the District Judge of Murshidabad directing her not to alienate certain properties without the permission of the Court.

2. The facts briefly are as follows:—

3. A suit was instituted in “forma pauperis” by Sabita Dasi, a minor represented by her guardian, for a declaration that she was entitled to maintenance out of the property of her deceased father and for a declaration of a charge for her maintenance on those properties. The property was in possession of her step-mother who inherited a limited interest in that property on the death of the father of Sabita Dasi. While the application for permission to sue as a pauper was pending, Sabita applied for an injunction against her step-mother restraining her from disposing of the property, pending the disposal of the suit on the ground that if the property were disposed of in the meantime there would be nothing left upon which she could get a charge for her maintenance. She made the usual allegations that her step-mother was disposing of the property for the purpose of depriving her of her rights. The learned Subordinate Judge, before whom this application was made, did not grant an injunction in the broad terms prayed for, but restrained the step-mother from selling any property without the permission of the Court till the disposal of the suit. His intention obviously was to prevent the step-mother from disposing of the property except for legal necessity pending the disposal of the suit. An appeal to the District Judge was dismissed. Hence this rule. The first question for decision is whether the Court had any jurisdiction to pass such an order. I must hold that the Court had no jurisdiction to pass any order under Or. 39, r. 1 of the Civil Procedure Code as there was no pending suit at that time. This is the view expressed in cases decided by this Court, although there are decisions to the contrary by other High Courts. It is argued, however, on behalf of the Opposite Party that the order was not passed under Or. 39, r. 1 of the Code, but in the exercise of the Court's inherent powers saved by Sec. 151 of the Code of Civil Procedure. The question which, therefore, arises is whether the Court has such inherent powers. As regards this I have no doubt. Sec. 151 of the Code of Civil Procedure saves certain powers of the Court and permits the Court to make orders ex debito justitiae where there is no express provision in the Code for making such orders and where there is no prohibition in the Code against the making of such orders. It seems to me that pending the decision of the pauper application the Court cannot be left powerless to protect the interests of the pauper. It has inherent power to pass an order of the nature of the present one if the ends of justice require the passing of such an order.

4. In the case relied on by learned Advocate for the Petitioner, namely, the case of Purna Chabri v. Tara Prasad Maity(1) the question of inherent jurisdiction was never argued or decided. All that this Court decided was that, pending the disposal of an application to sue in “forma pauperis,” there was no suit before the Court and, therefore, the Court had no jurisdiction to pass an order under Or. 38, r. 5 of the Code, namely, an order of attachment before judgment. In the present case, however, the order has not been passed under Or. 39, r. 1 but in the exercise of the inherent powers of the Court. Therefore this decision has really no application. On the other hand, there are decisions of other High Courts which support the view that a Court may, in the exercise of its inherent jurisdiction, pass an order which partakes of the nature of an order under Or. 39 where no suit is pending, by reason of the fact that the disposal of an application for leave to sue as a pauper had not yet been decided. I would refer to one of these cases, namely, the case of Dhaneswar Nath Tewari v. Ghanshyam Dhar Mistra(2). The decision of the Bombay High Court has gone still further.

5. In the case of Totaram Ichharam Wani v. Dattu Mangu Wani(3), Chief Justice Beaumont held that the filing of an application in the form of a plaint asking permission to sue in forma pauperis really commences the suit and pending the determination of the application the Defendant has a right to apply under Or. 39, r. 7 of the Code of Civil Procedure. I hold, therefore, that the Court has inherent jurisdiction to make an order like the one which has been made in the exercise of the inherent powers saved by the provision of Sec. 161 of the Code of Civil Procedure.

6. The next question for decision is whether in the circumstances of this case such an order is really necessary for the ends of justice. In the exercise of our jurisdiction which is saved to us by the provisions of Sec. 151 of the Code we should be extremely careful in passing orders and it is only when no other relief is possible and when relief is urgently called for, that we should exercise our inherent powers; and when we do exercise such powers we should limit the scope of such exercise to as narrow a compass as possible.

7. We are of opinion that in this case the order is an eminently reasonable one. The Defendant has no right to dispose of the property except for legal necessity. All that the Court has directed her to do is to ask for the permission of the Court before she disposes of her property. No unqualified order of restraint has been passed upon her. The minor, in our opinion, should be safeguarded so that she may get her maintenance. The Defendant is a step-mother. It is not unknown that a step-mother often has no hesitation in depriving her stepchildren of their rights. The Court should be careful to protect the rights of a minor in a case of this description.

8. In my opinion, the order is eminently reasonable and it is quite limited in scope.

9. A point was taken by the Opposite Party that the application was incompetent.

10. It was argued that the order having been passed by the first Court in the exercise of the Court's inherent jurisdiction, no appeal lay to the District Judge, and that the remedy of the Petitioner was to move this Court direct under the provisions of Sec. 115 of the Code of Civil Procedure. This is quite correct but we do not reject the petition on this narrow technical ground but on the grounds stated above.

11. The rule is discharged with costs.

Chunder, J.:— I agree.

N.D.R