Shree Shankarji Maharaj v. Mt. Godavaribai

1. The applicants are two idols represented by their Shebait or manager, Mt. Chironjabai. They applied in the lower Court under O. 33, R. 1 of the CPC, for permission to file a suit in forma pauperis against the non-applicant for a declaration and possession of certain properties alleged to have been dedicated to them. The application was opposed by the non-applicant only on the following ground: The applicants are not “persons” within the meaning of O. 33, R. 1 of the CPC, and therefore the application does not lie and should be rejected.

2. The lower Court accepting the contention as correct dismissed the application.

3. It was also of the opinion that since a Shebait was appointed for the applicants a suit in the name of the idols themselves was not maintainable and as a corollary from this it deduced that the question for determination really was whether the Shebait was a pauper, and not whether the idols were paupers. It further held that since there was no evidence to show that the Shebait was a pauper it rejected the application also on that ground. The applicants seek revision of these orders, A preliminary objection was raised by the non-applicant's learned counsel that the order of the lower Court could not be subject to revision of this Court even on the assumption that it decided the question of law incorrectly. In my opinion this contention is not quite correct. In a series of cases this Court entertained revisional applications against orders rejecting applications for permission to sue in forma pauperis: 19 N.L.R 165(1), 1925 Nag. 343(2) and 1927 Nag. 340(3). Similarly the other High Courts have also interfered with such orders: 56 Bom. 585(4), 3 Pat. 275 : (5) : 9 Rang. 86(6), 2 C.W.N 474(7) and 8 C.W.N 70(8). The scope of the observation of their Lordships in 40 Mad. 793(9) at p. 799 to the effect that Section 115 of the CPC is not directed against conclusions-of law or fact in which the question of: jurisdiction is not involved, was considered by Niyogi, A.J.C, in 27 N.L.R 251(10). At p. 256 of the report the learned Judge remarked:

This observation properly interpreted means that when the conclusions of law or fact involve the question of jurisdiction, viz. ‘The irregular exercise, or non-exercise of it or the illegal assumption of it,’ such conclusions of law or fact may be disturbed in revision. The term jurisdiction cannot be restricted to the power to entertain a suit or appeal. The Court may have this power and yet it may lose its jurisdiction to pass a particular order in the suit or appeal. If it is found that the Court, purporting to apply a provision of law, does it in an erroneous manner or applies an inapposite law, would it be committing merely an error of law or ‘acting’ in exercise of its powers ‘illegally’? The lower Court while professing to apply the provisions of S. 14 has really acted in contravention of the section and the result was that, whereas it had no jurisdiction to allow the suit, to continue, it has assumed jurisdiction to try; it. From this point of view, it would be clear, that the Court did not merely decide wrongly, but ‘acted illegally’: see 7 All 315(11).

4. In 19 NLR 165 the lower Court had included property which O. 33, R. 1 of the CPC, says should be excluded when examining the value of the property in the applicant's possession and; this was held to be not merely an error of law but an illegal exercise of the powers vested in the Court. Similarly the decision in 56 Bom 585, appears, to have proceeded on the view that there was a conscious violation on the part of the lower Court of the specific rules laid down in O. 33 of the CPC, resulting in a grave injustice to the applicant. If therefore the lower Court in the present case rejected the application of the applicants for permission to file a suit in forma pauperis on the erroneous assumption that they were not the “persons” entitled to present such an application under the said order its decision would amount to a conscious violation of the specific rules of the Code of Civil Procedure. I therefore overrule the objection. On the merits of the order there is not much to be said. Except in 1930 Rang 259(12) where it was held that the word “person” in O. 33, R. 1 of the CPC, means a natural person, that is a human being, and does not include a juridical person such as a receiver, in all other cases in which the point arose for decision, not only in the Rangoon High Court itself but in other High Courts such an interpretation of the word “person” has not been accepted. In 1930 Rang 272(13) a Divisional Bench of the Rangoon High Court held that a firm is a “person” within the meaning of O. 33, R. 1 of the CPC. In 11 Mad 624(14) an official liquidator of company was held competent to apply for leave to sue in forma pauperis under O. 33, R. 1 of the CPC, provided the company was a pauper within R. 1 thereof. It was held that the reference to “necessary wearing apparel” in the explanation to R. 1 and the provisions of R. 3 requiring presentation of petition by the “applicant in person” in O. 33, do not necessarily exclude the application of the order to a company.

5. The word “person” has not been anywhere defined in the Code of Civil Procedure, but it has been defined in Section 2(39) of the General Clauses Act. But even that definition does not appear to be exhaustive and is merely illustrative. Section 2(3) of the CPC, defines “decree-holder” as a person in whose favour a decree has been passed and S. 2(10) also defines a ‘judgment-debtor” as a person against whom a decree has been passed. Again O. 1 ibid, which refers to “parties to suits,” makes the position clearer. Under R. 1 of that Order all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction, or series of acts or transactions is alleged to exist. It therefore follows that the word “persons” used here has reference to all those who have a right to institute a suit under the Code of Civil Procedure. A plaintiff suing in a civil Court must pay the court-fee prescribed by law for the plaint. But a person may be too poor to pay the necessary court-fee and the object of O. 33 is to enable such a person to institute a suit without payment of court-fee. In other words O. 33 of the CPC, applies to all prospective plaintiffs or persons in whom any right to relief exists within the meaning of O. 1, R. 1 of the Code.

6. In 52 Cal 809(15) it is held that an idol is a juridical person and that it can sue and be sued in its own name, even when there is a manager, who in common parlance is called a Shebait. That being the position it follows that an idol is a “person” who comes within the meaning of O. 33, R. 1 of the CPC, and I hold so. The lower Court is equally wrong in coming to the conclusion that in cases of the present kind it is the Shebait who has to prove that he is a pauper and not the idols who are the real plaintiffs on whose behalf he is merely acting as a manager. In 100 IC 264(16) it was held that in the case of a mutwalli applying under O. 33 on behalf of a waqf the question whether the mutwalli has funds of his own is irrelevant and the inquiry should be confined to ascertain if the wakf is a pauper within the meaning of the order. The result is that this application for revision is allowed, the order of the lower Court is set aside with costs, and the case remanded to it for disposal according to law. Pleader's fee Rs. 50.

R.M/V.V

7. Application allowed.