Mullick, J.:— This is an application for revision of an order made by the Subordinate Judge of Chota Nagpur refusing leave to the petitioner to sue as a pauper under O. 33 of the CPC. The petitioner a alleges that she has lent money to the defendants upon a partnership. She sues the defendants for damages for the rescission of that contract. The Subordinate Judge does not appear to have examined the plaintiff under O. 33, R. 4, but appears to have straightaway embarked upon an inquiry under O. 33, R. 6, not only upon the question of pauperism, but also upon the points referred to in R. 5. As a result of that inquiry after examination of witnesses the Subordinate Judge came to the conclusion that it was not necessary to determine whether or not the plaintiff was a pauper. He found that the plaintiff was a benamidar for her husband who was a clerk in Government service and that therefore the allegations in her plaint showed no cause of action. The petitioner now asks us to interfere under Section 115 of the CPC, alleging that the Court has exceeded its jurisdiction or exercised its jurisdiction in a materially irregular manner by going into the question whether the petitioner was a benamidar. It is contended by the learned vakil for the petitioner that the Court was only entitled to determine, upon a perusal of the plaint and an examination, if necessary, of the petitioner herself, whether or not the disqualification under Cl. (d), R. 5, was established, and that the Subordinate Judge had no jurisdiction to engage in an elaborate inquiry as to the merits of the plea of benami raised by the defendants. Reliance is placed by the learned vakil upon Gopal Chandra Neogy v. Bigpo Mistry(1), where their Lordships of the Calcutta High Court observed as follows with reference to an order made by a Court under somewhat similar circumstances:
“What he does really is that he applies a course of inquiry to the matter he had to investigate under S. 407 which was not applicable to it, and he thereby fails to apply to the matter a course of inquiry which was applicable. If he had confined his inquiry to the allegations as made in the plaint, and if he had said that those allegations do not show a right to sue, it is extremely doubtful whether this Court could interfere with his order under S. 622, however wrong that order might be. But he does not do so; rather he introduces considerations which are entirely foreign to the inquiry which he was called upon to make, and upon those considerations he holds that the allegations in the plaint do not show a right to sue.”
2. The learned vakil next relies upon Govindasami Pillai v. Municipal Council, Kumbakonam(2). In this case their Lordships of the Madras High Court do not cite any authority for the proposition that O. 33, R. 5, does not contemplate that the Court shall go into a question of limitation to see if the petitioner has a subsisting cause of action. Indeed their Lordships appear to have overlooked a decision of their own Court, Amirtham v. Alwar Manikkam(3), which decides the contrary. R. 7, O. 33, clearly enacts that the Court shall hear arguments, if the parties so desire, on the question whether upon the face of the application and of the evidence (if any) taken by the Court the application is, or is not subject to any of the prohibitions specified in R. 5. In other words, it is fully competent for a Court to take evidence under Rr. 6 and 7 upon any of the matters; specified in R. 5 and to decide upon those matters to the best of its ability. In support of what the law so clearly enacts the learned vakil for the opposite party cites Kamrakh Nath v. Sundar Nath(4), which follows the earlier case of In the matter of Gunga Dass Adhikaree(5). It is clear therefore that the contention that the Court had no jurisdiction to investigate the question of benami by taking evidence cannot be sustained.
3. Then it is urged that even though the Court had the power so to do, the Court has not in so many words found that the Petitioner was a benamidar for her husband. Now, it is true that the finding is not very happily worded but upon a reading of the whole of the judgment of the learned Subordinate Judge, I have no possible doubt that he has found that the petitioner is a benamidar. It is next contended that even if she is a benamidar the decision of the learned Subordinate Judge that she has no right to sue, as wrong in law. It is not necessary for our purposes to go into the question whether a benamidar is entitled in all cases to sue upon a money debt. It is sufficient to say that the Subordinate Judge had jurisdiction to deed the question and if he has decided it wrongly that is a matter which does not give the petitioner a right to come to us under Section 115 of the CPC. The Court had jurisdiction to decide rightly as well as wrongly and if unfortunately he has decided wrongly, that does not in any way affect his jurisdiction. This was also the view taken in Kamrakh Nath's case cited above.
4. There is finally a further reason why the petitioner should not be allowed to succeed. If the petitioner is a benamidar the effect of permitting her to sue as a pauper will be to give a person, who is not a pauper, the right to evade the fiscal law. That cannot be the intention of the statute. The statute has been designed in and of bona fide litigants and must be strictly confined to such litigants. It cannot have been the intention of the statute that a litigant, fully able to comply with the terms of the fiscal law, should by setting up a pauper as his nominee, be entitled to evade the claims of the State. Indeed R. 5, O. 33, does make a provision for cases of this kind. Sub-Cl. (e) of that rule enacts that if the petitioner has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in that subject, then he will not be allowed to avail himself of the benefits of the rule. Here the petitioner has by implication made an agreement with her husband with reference to the subject-matter of the suit and therefore the principle of sub-Cl. (e) must apply.
5. For all these reasons the decision of the Subordinate Judge seems to be correct and the application must be dismissed with costs, hearing fee two gold mohurs.
6. Jwala Prasad, J.:— I agree.
V.S/R.K
7. Application dismissed.