Krishna Kumar Brijbhooshan v. Radhelal Biharilal

1. This is an application for revision against an application allowing the plaintiff to sue as a pauper. A preliminary objection is raised to the effect that no such application lies and I am referred to 7 NLR 49.1 I am of opinion that the ruling is no longer good law. The decision is based on the assumption that no revision lies against an interlocutory order. The learned Additional Judicial Commissioner followed 32 All 623.2 So far as interlocutory orders are concerned, it has now been decided in 15 NLR 213 and 27 NLR 2514 that the word ‘case’ used in Section 115 of the CPC, is wide enough to include an interlocutory order and that the High Court will interfere even in the case of such orders provided they otherwise fulfil the requirements of S. 115. Therefore, since the only foundation on which 7 NLR 49 is based has now been cut away, it follows the ruling cannot be regarded as good law any longer.

2. So far as 32 All 623 is concerned it has been interpreted by the Allahabad High Court in 52 All 9275 and the learned Judges state that the earlier case did not decide that no revision lay nor did they decide that a pauper application is an interlocutory matter.

3. This is also the view in 45 All 5486 as well as in 55 All 2167 They are all agreed that an order in respect of a pauper application is revisable in a suitable case whether the application is granted or rejected, and I also respectfully agree. I do not think that it is necessary to refer this question to a Bench because the two later Nagpur rulings which I have cited virtually overrule 7 NLR 49, that is to say, they decide that the only ground upon which the decision proceeded is wrong, and if I follow the two later decisions, then the only logical corollary is that an order allowing a person to sue as a pauper is revisable if it otherwise fulfils the provisions of Section 115 of the CPC.

4. Turning now to the merits, the applicant complains that he was not allowed to prove that the pauper plaintiff had entered into an agreement with reference to the subject-matter of the proposed suit under which another person has obtained an interest in the property. If this is so, then of course there has been a material irregularity in procedure within the meaning of S. 115(c). The scheme of O. 33 is clear and has been explained in 31 NLR 386.8 There is first of all a preliminary stage in which the Court proceeds ex parte. At that stage the Court scrutinizes the application and is empowered, if it thinks fit, to examine the applicant or his agent. R. 5 then directs that after this has been done the Court shall reject the application if it finds any of the five grounds mentioned in that Rule to exist. If not it issues notice to the opposite party and the Government Pleader for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof.

5. After the notices have been issued and a date fixed, the Court is then directed by R. 7 to examine the witnesses produced by either party on the date so fixed and then after hearing this evidence it is again directed to reject the application if any of the prohibitions specified in R. 5 exists. It is clear then that the applicant has a right to adduce evidence and to be heard in connexion with any matter specified in R. 5.

6. When notice was issued to the applicant before me he filed a detailed statement showing that the property in suit, namely nine villages, had been transferred to one Ramshankar pleader by two deeds of gift. There was also an agreement entered into at the same time to the effect that this Ramshankar was to return two of the villages to the pauper applicant after the mutation proceedings. If this is so, then clearly there is an agreement, either because of the deeds of gift or because of them coupled with the other agreement alleged referring to the subject-matter of the suit in which this Ramshankar has obtained an interest in the property. The plaintiff declined to plead to this except to the extent of saying that Ramshankar had nothing to do with the filing of the pauper suit (petition), which of course evaded the definite allegations made about the deeds of gift. He said the matter related to the merits and so was irrelevant at that stage. It was not irrelevant. It may or may not have related to the merits as well but that was neither here nor there. It was most pertinent to the inquiry then under consideration. Any way he had the opportunity to plead to the definite allegations and refused to do so.

7. When the pauper applicant entered the witness box the other side wanted to cross-examine him about these transactions and he was prevented from doing so on the ground, that the matter related to the merits of the case. It follows that he has not been allowed to defend himself on the very ground on which the Code says he may. Therefore interference under Section 115(c) is most decidedly called for. It was argued that the questions the applicant before me was shut out from asking have not been specified in the order. That is so, but reading the pleadings and the plaintiff's reply together the matter is in my opinion beyond doubt. I therefore allow the application and remand the case, to the lower Court for a determination of the matters which arise out of the written statement of the applicant before me (non-applicant in the lower Court) in so far as they are relevant to O. 33, R. 5(b). The pauper applicant has not yet pleaded to these matters and so I consider it just that he should be allowed to do so. But since he having had the opportunity to plead to the issue refused to do so, he will pay the entire costs of this inquiry whatever its result, and if he is still allowed to sue as a pauper, payment of these costs will be made a condition precedent to the hearing of the suit. If he still refuses to plead or attempts further to evade the issue he will be given no further opportunity and the Court will then be at liberty to draw such inferences from his conduct as appear to it to arise therefrom bearing in mind the observation of their Lordships of the Privy Council in 40 Mad 4029 at pp. 408-409 and bearing in mind Section 106 of the Evidence Act. The, primary burden of proof will of course be on the defendant and the issues will be so cast, but if that is discharged by the adduction of prima facie evidence whether by cross-examination of the plaintiff himself or his witnesses or otherwise, then the law I have referred to above will come into operation. Modern litigation is intended to be a fair and square fight with all the cards on the table and any tendency to conceal facts or to evade a straight issue must be sternly discouraged. The parties stated on 15th August 1936 that they had no documents to produce, but that statement was probably made with reference to the pauper's refusal to plead to these facts and the Court's omission to frame an issue about them. In any case since it is now clear that the matter is relevant and since the proceedings are being re-opened to that extent, I think it right that both sides should be allowed to file such documents as they desire with reference to this issue. The costs of this revision will be paid by the non-applicant before me. Counsel's fee Rs. 30.

V.B/R.K

8. Case remanded.