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Anangabhusan Pltf.Petnr. v. Ghanashyam Patro & Another Defts Opposite Party.
Factual and Procedural Background
This revision arises from an order of the Subordinate Judge of Puri dispaupering the plaintiff under Order 33, Rule 9 of the Code of Civil Procedure (CPC). The plaintiff is a member of a Hindu Mitakshara joint family; his father is one of the defendants. The substantive suit seeks to set aside certain alienations made by the father and to recover the properties so alienated, the attacks being grounded on alleged immorality and illegality of those transactions.
The plaintiff applied for leave to sue in forma pauperis. Notice of that application was given to the Government and to the defendants, who filed objections. None of the contesting parties, however, appeared on the hearing date for the leave application. The Subordinate Judge, purporting to act under Order 33, Rule 7, granted leave to the plaintiff to sue as a pauper and the leave application was registered as a suit; the plaintiff was exempted from paying further court-fees on future applications in the suit.
Subsequently the opposite party (defendants) filed an application under Order 33, Rule 9(b) alleging that the plaintiff's means were such that he ought not to be continued as a pauper. The Court below, without making enquiries whether the applicants were prevented by sufficient cause from appearing at the earlier hearing and without any enquiry that would normally justify reopening the earlier order, entertained the Rule 9 application, examined its merits and concluded that the plaintiff possessed means enabling him to pay the requisite court-fees; accordingly he was dispaupered.
The plaintiff sought revision of that dispaupering order. The High Court (Ray, C.J., with Narasimham, J. agreeing) allowed the revision, held the Subordinate Judge's order to be without jurisdiction and set it aside; costs were awarded and the hearing was assessed at one gold mohur.
Legal Issues Presented
- Whether, under Order 33, Rule 9 of the CPC, a court may entertain an application to dispauper a plaintiff on the basis of "means" that existed prior to the grant of leave to sue as a pauper, or whether Rule 9 is limited to means acquired or coming into the plaintiff's possession after the leave was granted.
- Whether the Court below had jurisdiction to reopen and rehear the matter under Rule 9 without first enquiring whether the applicants were prevented by sufficient cause from appearing when the Rule 7 leave application was heard.
- Whether omission of certain properties from an inventory filed with a pauper-leave application can, as a matter of law, be treated as "vexatious and improper conduct in the course of the suit" under clause (a) of Rule 9, amounting to deliberate concealment.
Arguments of the Parties
Plaintiff's Arguments
- The court below lacked jurisdiction to entertain the Rule 9 application in respect of means that were in the plaintiff's possession prior to the adjudication under Rule 7; such matters should have been raised at the stage when leave was granted.
- The principle of finality requires that an order passed in the presence of the parties should, to the extent it embraces matters then open to contest, close those controversies so they are not repeatedly reopened within the same proceedings.
Opposite Party's Arguments (as represented by Mr. Mohanty)
- Rule 9 contains no express words limiting "means" to those acquired after the adjudication of the leave application; therefore the rule may be applied to existing means.
- The word "continue" in Rule 9 contemplates that the plaintiff was adjudged a pauper at the commencement of the suit and that the court can thereafter decide whether he should be allowed to continue as a pauper — the rule operates on events happening subsequently and is not intended to give absolute finality to the earlier order.
- The plaintiff's liability for costs is a continuing liability; if he comes into means he can be ordered to pay even if he was pauper at the start.
- Reliance on Sankir Bharati v. Narasimha Bharati to argue that omission or concealment of means in the proceedings can constitute vexatious or improper conduct under clause (a) of Rule 9.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mumtazan v. Rasulan, 23 All. 364 | That the validity or finality of an order granting a petition for leave to sue as a pauper could not be challenged collaterally (e.g., in an appeal from the final decree in the suit); such an order is an independent order prior to the suit. | The Court relied on this case as supporting the proposition that finality should be attributed to an order so far as it embraces matters that could have been urged at the leave stage; it lends weight to the view that matters available to be raised when leave was granted cannot be reopened lightly later. |
| Agent, B.N. Rly. Co. Ltd. v. Venkateswami, 49 C.W.N. 551 | By implication indicates that means coming into the petitioner's possession subsequent to filing of the leave application can be considered in a proceeding under Rule 9. | The Court treated this decision as supporting the view that Rule 9 is available to deal with means acquired after the leave application and thereby supports limiting reopening to subsequent events rather than pre-existing means omitted earlier. |
| Sankir Bharati v. Narasimha Bharati, 47 Bom. 106 (A.I.R. 1922 Bom. 383) | Addressed the concept of "vexatious and improper conduct in the course of the suit" such as deliberate concealment of means (invoked to fall under clause (a) of Rule 9). | The Court held that this Bombay case did not decide (and in fact left open) whether proceedings based on the leave application are included in "the suit" for purposes of clause (a). It therefore did not support the proposition urged and was not authority for treating omission from an inventory, without more, as active concealment. |
Court's Reasoning and Analysis
The Court began its analysis with the language of Order 33, Rule 9, which allows the Court on application of the defendant to order the plaintiff to be dispaupered "if it appears that his means are such that he ought not to continue to sue as a pauper." The Court examined whether the phrase "his means" in Rule 9 must be restricted to means acquired after the leave adjudication.
The Court observed that, while Rule 9 contains no express temporal limitation, the limitation is implicit in the word "continue." "Continue" presupposes an adjudged pauper status at the date of commencement, and Rule 9 was framed to enable the Court to act on events happening subsequently rather than to encourage repeated reopening of matters that were available for contest when leave was granted. The Court rejected an interpretation that would permit defendants to agitate the plaintiff's pauperism repeatedly throughout the suit, calling such a result absurd and contrary to the intention of the Rules' framers.
The Court emphasized that Rule 9 confers a discretion to dispauper, and in exercising that discretion the Court will be reluctant to grant indulgence to a party who, through his own omission (for example, failure to appear when required), seeks to reopen an order passed in the presence of the parties. As a matter of general procedure, orders passed or deemed to have been passed in the presence of the parties are not ordinarily reopened without sufficient grounds to warrant recall.
Applying these principles to the present facts, the Court found that the alleged "means" relied upon by the defendants were family properties that admittedly were not acquired after the grant of leave nor did the defendants assert they came into the plaintiff's possession subsequently. Therefore the defendants should have raised those points at the stage when Rule 7 leave was considered. The Court held that the Subordinate Judge erred by entertaining and deciding the Rule 9 application on its merits without first asking whether the applicants had been prevented by sufficient cause from appearing earlier, and without recognition that Rule 9 is primarily addressed to subsequent events.
Regarding the contention of deliberate concealment (clause (a) of Rule 9), the Court found that omission of properties from an inventory is not necessarily equivalent to active concealment; whether an omission amounts to concealment is a factual question. The Court noted that the plaintiff in this case was a junior member of a joint family, a wireless operator, and the father was alive — circumstances that could account for the omission without implying dishonest concealment. The Bombay decision relied on by the defendants was held not to be authority for treating the omission as active concealment.
Holding and Implications
Holding: Revision allowed — the order of the Subordinate Judge dispaupering the plaintiff under Order 33, Rule 9, was without jurisdiction and is set aside.
Implications:
- The direct effect is that the dispaupering order is quashed and the plaintiff remains entitled to continue to prosecute the suit as a pauper (subject to the existing leave granted under Order 33, Rule 7) unless and until a proper Rule 9 application based on events occurring after the leave is granted is made and successfully established.
- Costs were awarded against the applicant in the revision (the Civil Revision was allowed with costs), and the hearing was assessed at one gold mohur.
- The Court's decision rests on interpretation of Rule 9 and procedural principles of finality and discretion; the opinion applies those principles to the facts and relies on earlier authorities for support, but it does not purport to lay down a broader or novel precedent beyond these conclusions about the proper scope and use of Rule 9 in circumstances where the alleged means predate the grant of pauper leave.
Judge Narasimham agreed with the opinion. The final order in the file states: "Revision allowed."
Ray, C.J:— This is revn. directed against an order passed by the Subordinate Judge of Puri dispaupering the pltf. under O. 33, R. 9 of the CPC. The pltf. admittedly is a member of a Hindu Mitakshara Joint family & his father is one of the defts. in the suit. The suit is for setting aside certain alienations, made by his father & for recovery of the properties so alienated. The attack on those alienation is based upon immorality & illegality of the transactions. The pltf. applied for leave to sue in forma pauperis. Of his appln. due notices were given to the Grown as well as, to the defts. opposite party. They filed their objections challenging the plea of pauperism but none of the contesting parties appeared at the date when the matter was heard by the Ct. The Ct. purporting to act under O. 33, R. 7 granted the pltf. leave to sue as a pauper on which his appln. for leave was registered as a suit & was to proceed as such, in the ordinary way except that he should be exempted from paying any further Ct.-f. on his applns. to be filed in coarse of the suit. At a later stage, the opp. party filed an appln. under R. 9(b) of the Order alleging that the pltf.'s means were such that he ought not to be continued to sue as a pauper. The Ct. below, without making any enquiry as to whether the appcts. before him were prevented, by any sufficient cause, from appearing at the date of hearing of the pltfs. appln. for leave to sue as a pauper, & without making any sort of enquiry whatsoever which would, as a matter of principle, entitle the appcts. to reopen the order passed under R. 7, entertained the appln. & enquired into its merits. After such enquiry, he has believed the opp. party's case & has come to the conclusion that the pltf. is possessed of means, such as would enable him to pay the requisite C.-f. & that, therefore, he has no right to continue to sue as a pauper.
2. The pltf. has coma up in revn. against this order & his point is that the Ct. had no jurisdiction to entertain the appln. so far as it did not disclose that the means referred to were such means as came into the pltfs. possession later than the disposal of his leave appln. under R. 7; in other words, the contention in that the matter could have been urged before the Ct. at the stage when the leave was granted & could not be the subj-ct-matter of discussion at a later stage. This Contention is based on the principle that any order, either interlocutory or final in its nature, passed in presence of the parties, should be taken as closing the controversy once for all for the purposes of the proceedings or the suit in which it is passed & so far as it goes. The order may or may not be such on which a plea of res judicata can be based, but in order to avoid multiplicity of proceedings, some sort of finality, limited with in the scope of the suit or the proceedings in which it is passed, has to be attributed to it. In the present case, the means that were alleged to have been in pltfs. possession were the family properties which admittedly were not acquired subsequent to either his filing the appln. to leave or to the registration of that appln. as a suit. Reliance, in support of the order, is placed upon the terms of R. 9 which, so far as material for purpose of this revn. read:
“The Ct. may, on the appln. of the deft., of which seven days' clear notice in writing has been given to the pltf. order the pltf. to be dispaupered if it appears that his means are such that he ought not to continue to sue as a pauper.”
3. Mr. Mohanty, appearing for the opp. party, says that there are no such words of limitation as will compel the interpretation that “the means” referred to in Cl. (b), must be “the means” that should have been acquired by or otherwise come to the possession of the pltf. after adjudication of the petn. for leave. But such limitation inheres in the word ‘continue’. If we assign the plain grammatical meaning to the word ‘continue’, is will appear evident that it assumes the fact that he was an adjudged pauper at the date of commencement of the suit & the question arose if he should be allowed to continue as such. This rule is framed to operate not in derogation of the finality or validity of the order already passed as between the parties but enabling the Ct. to dis-pauper the pltf. on the basis of events happening subsequently. This view appears to us to be very clear & convincing. When pushed to its logical conclusion, Mr. Mohanty's contention, if accepted, would lead to what is absurd on the face of it. That ia, throughout the progress of the suit, the deft, may go on without any rest whatsoever agitating & re-agitating the question of pltf.'s pauperism for times without number. This could never be the intention of the framers of the Rules.
4. Mr. Mohanty contrasts the provisions of R. 9 with the one appearing in the same Order of the Code giving finality to an order disallowing leave to sue as pauper. That is because the pltif.'s liability for of is a continuing liability & he can be ordered to pay whenever he comes by means to pay. On the other hand, if he had means enough to pay the requisite c.-fs. at the commencement of the suit, he should be liable to pay, notwithstanding subsequent change of his financial position reducing him to poverty.
5. The question can be viewed from another aspect, namely, that R. 9 makes it not oblatory but discretionary on the Ct. to dispauper a pauper pltf. In exercising this discretion, the Ct. certainly will not be indulgent to the party who chose at his own risk not to appear on the date when he was called upon to appear & contact, if he liked but to come at any moment & compel the Ct. to reopen the matter. The rule, in matters of procedure too, that orders passed or deemed to have been pissed in presence of the parties will not ordinarily be reopened for the mere asking of them, is fundamental. The party asking for such indulgence must lay a foundation of sufficient grounds so as to entitle him to ask the Ct. to recall his order. Under the circumstance, we are bound to hold that in the circumstances of the present case as the alleged Means have not been acquired later, deft. 1 should not have been heard to say what he ought to have said much earlier at the stage when the order under R. 7 was to be passed. We have no direct authority on the point either way. There are some observations here & there which may, to some extent, lend support to our view. In the case of Mumtazan v. Rasulan, 23 ALL. 364, it was laid down that the validity or finality of an order granting a petn. for leave to sue as pauper could not be challenged in an appeal from the decree passed in the suit. The learned Judges who decided the case have observed that order posed at that stage is not an order affecting the decision of the suit & is an independent order prior to the suit &, therefore, not challenge able collaterally in the manner in which it was sought to be done in that case. The case of Agtnt, B.N Rly. Co. Ltd. v. Venkateswami, 49 C.W.N 551, by implication, supports our view. It says that means coming to the possession of the petnr. subsequent to his filing of his appln. for leave can be considered in a proceeding initiated under R. 9. Here, in the present case, it is not said that the means, referred to in the deft.'s petn. were acquired later than the filing of the leave appln. These cases do attribute finality to the order so far as it embraces adjudication of matters that could be urged by the parties at that stage.
6. Mr. Mohanty, as a last recourse, relies upon the case of Sankir Bharati v. Narasimha Bharati, 47 Bom. 106 : (A.I.R(9) 1922 Bom 383), with, a view to bringing the case within cl. (a) of R. 9. He contends that the pltf. is, at any rate, guilty of vexatious & improper conduct in the course of the suit for deliberate concealment of his means from the Ct. The clause, standing by itself, would refer to guilty conduct in course of the suit, that is, after the appln. is registered as a suit. Whether the suit will have the ex tended meaning so as to include the proceedings based on the leave appln. is a question which is not free from difficulty. Had the Bombay case, referred to, decided the point, we might have taken any other views. But that question has there been left open. That case is no authority for the proposition urged. Over & above, the plea was never advanced in Ct. below. Some omission of certain properties from the inventory submitted by the pltf. will not necessarily amount to active concealment & thus to vexatious & improper conduct in the course of the suit. Whether it is a concealment as distinguished from mere omission is a question of fact. It appears from the facts of the present case that the pltf. is but a junior member of the family & a wireless-operator, his father being alive. We do not know whether the father has any sympathy with his launching of this litigation. Under the circumstances, it is not necessarily probable that he had knowledge of the properties. Besides, it may be consistent with the honesty that as a junior member of the joint Mitakshara family, he did not consider that he had such disposing power over the joint family properties as to constitute ‘means’ in his hands. For the purpose of a speculative suit involving a protracted course for recovery of properties wrongfully alienated by a Hindu father is hardly a justifiable ground for alienating joint family properties over which a membsr's power of disposition is very limited. I shall not be understood to any that in my view a member of a joint family shall be always considered a pauper even if he has interest in substantial family property. I am considering whether omission thereof from the inventory attached to an appln. for leave to sue as pauper is necessarily vexatious. In these circumstances, we cannot take notice of this plea as one available to Mr. Mohanty under Cl. (a) of R. 9 of the Order at this stage.
7. We, therefore, hold that the order of the learned Subordinate Judge was without jurisdiction & should be set aside. In the result the Civil Revn. is allowed with costs. Hearing is assessed at one gold mohur.
Narasimham, J.:— I agree.
R.G.D
8. Revision allowed.
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