Ghanshyam Dass Rastogi v. A.N Syal And Another

1. This is a petition for revision from the order of the Subordinate Judge granting permission to A.N Sayal, plaintiff-respondent, to bring a suit in forma pauperis for recovery of Rs. 1,03,650/- as damages for malicious prosecution against Sub Inspector Narinder Nath and the petitioner, Seth Ghanshyam Dass.

2. The facts may be briefly narrated. Ghanshyam Dass petitioner instituted a criminal complaint under Sec. 420 of the Indian Penal Code against A.N Sayal at Lucknow. A process was issued to A.N Sayal who, however, evaded service and had ultimately to be declared a proclaimed offender. Proceedings under Sections 87 and 88 of the CPC were taken and eventually on 14th of October 1950, Dewan Narinder Nath went to the house of Sayal to effect service of the process. At that time, it is said that Sayal did not want Narinder Nath to arrest him and offered a bribe of Rs. 500/- to the police officer for being left alone.

3. As a result of this incident, Sayal was subsequently prosecuted for an attempt to bribe, but was acquitted on 13th of February 1955, after the court had given him the benefit of the doubt. Saval ??? action by the order of the criminal Court acquitting him. He brought a suit for recovery of a sum of Rs. 1,03,650/- as damages for malicious prosecution in the bribery case and alleging that he was not in a position to pay the court-fee, applied to sue as a pauper under Order 33 of the CPC. Aggrieved by the order of the trial Court granting this application, Ghanshyam Dass has filed a petition for revision in this Court. A preliminary objection has been raised by Mr. Raghbir Singh, the learned counsel for the respondent that no revision is competent in this case. Reliance has been placed on the Supreme Court decision in Keshardeo Chamria v. Radha Kissen Chamria, 1953 SCR 136 : (AIR 1953 SC 23). It has not been disputed that the Subordinate Judge has passed an order in exercise of jurisdiction which is undoubtedly vested in him. According to the Supreme Court authority,

“Section 115 of the CPC, applies to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it, and if a subordinate Court had jurisdiction to make the order it has made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, the High Court has not power to interfere, however profoundly it may differ from the conclusions of that Court on questions of fact or law.”

4. Mr. Raghbir Singh states that the finding of Court below is based on evidence on which it may be possible to have a difference of opinion. This is not sufficient to provide a foothold for interference of this Court on the revisional side. This is true as far as it goes. It has, however, to be seen whether in coming to the conclusion which it did the trial Court committed an error in procedure which affected its ultimate decision. Chief Justice Mahajan, who delivered the judgment of the Court, cited with approval the observation of Bose J. In Narayan Sonaji v. Sheshrao Vithoba, AIR 1948 Nag 258 (FB), wherein it was said that:

“the words ‘illegally’ and ‘material irregularity’ do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.”

5. We are, thus, concerned not with the substance of the decision but the manner in which it has been arrived at.

6. It has been argued by Mr. Narula that the trial Court departed in the present case from the normal rule of procedure and the error so committed vitiates entirely the finding which has been returned by the trial Court on the principal issue whether the applicant is a pauper.

7. It may be observed that under Rule 2 of Order 33 of the CPC,

“every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto…….”

8. The schedule which was annexed to the plaint, according to the petitioner is vague, indefinite and misleading. There is even one positive misstatement in it. The value of furniture and miscellaneous articles and stationery in the schedule is given at Rs. 55/- only.

9. In the statement which the plaintiff made is the Court, it was stated by him that the furniture with him was of the value of Rs. 250/-. Moreover, the plaintiff baldly claimed that he had been doing Business of lacs only a few years before the present suit was filed. From the year 1949 to 1950, Sayal stated that he had sold goods of the value of five to six lacs of rupees and spent similar amounts in business dealings. He incurred an expenditure of thousands in the medical treatment of his children and also for household expenses.

10. Losses were also suffered to the tune of four to five lacs. Sayal stated that his wife who married him under the Civil Marriage Act had an income of her own and he had nothing to do with that and likewise his children were separate from him and their income could not be taken into account. No books of accounts have been produced to show how the losses were incurred and in what manner the large income which he claimed to have earned was consumed. The lower appellate Court has tried to explain away the statement made by the plaintiff as a piece of empty boast.

11. This, however, is not an adequate way of dealing with this evidence. No explanation at all has been given about the positive misstatement made by the plaintiff with regard to the value of the furniture made in the schedule. It has been ruled by Chandrasekhara Ayyar J. in Kuppuswami Naidu v. Varadappa Naidu, AIR 1943 Mad 11, that fraudulent suppression of assets must result in dismissal of application under Order 33, Rule 2 and Rule 5 of the CPC. As stated by him.

“in an application for leave to sue in forma pauperis, the utmost bona fides is required of the petitioner in the matter of the disclosure of his assets and any intentional departure from good faith whatever the motive might be, must attract the consequence of a dismissal of the petitioner, because under Order 33, Rule 2 read with Order 33, Rule 5(a), it is the bounden duty of the petitioner to make a full and accurate verified statement about his properties. The fact, that even if the suppressed assets were disclosed, it would not affect the question of pauperism, is not relevant”.

12. A similar statement of the law was made by Chief Justice Leach and Clark J. in a Division Bench authority of Chellammal v. Muthulakshmi Ammal, AIR 1945 Mad 296. It was held therein approving the principle laid down by Chandrasekhara Ayyar J. in AIR 1943 Mad 11, that

“under Order 33, Rule 2 read with Order 33, Rule 5(a) and Order 44, Rule 1, it is the bounden duty of the petitioner applying for leave to sue or appeal as a pauper to make a full and accurate verified statement of his or her properties……… Accordingly where the petitioner obtained leave to appeal in forma pauperis by practising fraud on the Court by not disclosing all his assets the leave must be cancelled.”

13. Whether the leave has to be granted or revoked, the principle remains that the fullest disclosure must be made by the person who seeks the concession of suing as a pauper. It is obvious that the good intention and bona fides of the applicant is a condition precedent for the grant of leave.

14. In the instant case, there is not only a suppression of an asset, but also an entire omission about the assets of business dealings which admittedly were done by the plaintiff. A true and frank disclosure was essential and one is left in doubt whether Sayal who on his own showing was a flourishing businessman only a short time before the suit was filed, is not in a position to finance this litigation.

15. The plaintiff has deliberately chosen to assess his loss of reputation at an excessive figure of over rupees one lac. I do not wish to be understood to say that a person who is a pauper or claims to be a pauper is not entitled to assess his reputation in the same manner as any other person in the land, but it is a relevant circumstance for consideration that a vindication of honour and reputation does not necessarily require a suit for recovery of heavy damages as has been done in this case.

16. The learned Judge has also ignored the importance of explanation appended to Rule 1 of Order 33 of the CPC. According to it, “a person is a ‘pauper’ when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit…”. The word “means” is important as it is in contradistinction to income. It is inconceivable that a person who had been dealing in lacs only a short time before the suit was filed is now not possessed of means as opposed to income to pay the prescribed fee. This aspect of the case has not been considered at all by the learned Judge.

17. When the plaintiff himself stated in the witness box about the extent and amplitude of his resources and income as a businessman in the days not very far behind, it became the duty of the Court to find out how his large resources had been dissipated. In my opinion, there has been very grave error in procedure in arriving at the conclusion that the plaintiff has proved himself to be a pauper.

18. It is not without significance that when the local commissioner (Mr. Misra, an advocate of this court) was sent to give an estimate of the resources of the plaintiff, he was not allowed admission in the house. He had made a note of whatever he saw without gaining an entry in the house and this is sufficient for the Court to come to a conclusion that the schedule did not express the true state of the financial position of the plaintiff.

19. The plaintiff came into the witness-box and later filed a detailed affidavit in support of his assertions. This is a procedure which cannot be commended. When the plaintiff had chosen to come in the witness-box, he should have been left to make a statement of his case by oral testimony. No reasons were assigned by the Court why the affidavit was allowed to be produced in evidence—an affidavit which contained much fuller and detailed account of the resources or lack of resources of the plaintiff than is contained in his oral evidence.

20. Having reached the conclusion that the decision of the trial Court with regard to the declaration of the plaintiff as a pauper is erroneous, there is no necessity of giving a decision on issue No. 2 which is to this effect:—

“Whether this application is not maintainable against respondent No. 2?”

21. From a narration of the facts, it would be seen that Ghanshyam Dass, the present petitioner, was not responsible directly for the prosecution of Sayal for an attempt to bribe. So far as the present petitioner is concerned, as at present advised, I think that it is a case not so much for malicious prosecution as for malicious abetment. However, as I am not called upon to say anything on this matter, I resolutely decline to give any expression of my opinion.

22. In the result, this petition for revision succeeds and is accordingly allowed. The plaintiff has not proved himself to be a pauper and if he wishes to proceed with the suit, he must do so after payment of the requisite court-fee.

23. The court-fee must be paid within a period of two months from this date.

24. I would, however, make no order as to costs of this petition.

LD/K.S.B

25. Revision allowed.