1. The non-applicant made an application on 21st June 1932 for permission to sue as a pauper. Prior to this application, on 23rd December 1931, she had made a similar application which had been contested by the applicant and rejected by the Court, under R. 5(a), O. 33 for the reason that the schedule of properties annexed to the application under O. 33, R. 2 of the CPC had not been verified as required. It was contended in the lower Court that the order rejecting the previous application passed on 18th June 1932 debarred the applicant from presenting a fresh application for permission to sue in forma pauperis. The lower Court held that the order rejecting the previous-application under O. 33, R. 5, for want of verification of the schedule of properties, did not amount to an order refusing, to allow the applicant to sue as a pauper within the meaning of that expression occurring in O. 33, R. 15.
2. It is contended on behalf of the applicant that the order rejecting the application having been passed after notice to the applicant, who was defendant in that case, must be taken to have the same force as an order refusing to allow the non-applicant to sue as a pauper.
3. There is apparently much force in this contention regard being had to the provisions of Rr. 4, 5 and 7 of O. 33. Rr. 2 and 3 of that order lay down respectively the form, and mode of presentation of the application. If the application is in proper form and duly presented R. 4 gives power to the Court to examine the applicant, but if the application is not framed and presented in the manner prescribed by Rr. 2 and. 3, it is directed to be rejected under R. 5. When the Court sees no reason to reject the application it has to fix a date for receiving evidence. In this connexion it would be pertinent to reproduce R. 7, which is as follows:
(1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. (2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in R. 5. (3) The Court shall then either allow or refuse to allow the applicant to sue as a pauper.
4. It would be clear that under sub-R. 2 it is open to the Court to investigate again whether the applicant is or is not subject to any of the prohibitions specified in R. 5. If the Court finds that the applicant is subject to any of the prohibitions specified in R. 5, it under, sub-R. 3, is bound to refuse to allow the applicant to sue as a pauper. The under, lying idea seems to be that when an application is dismissed after contest even though on any of the grounds specified in R. 5 that dismissal operates as a bar to any fresh application. The order of rejection under R. 5 is an ex parte order, while the order passed under sub-R. 3, R. 7 is one passed after contest. Under the latter rule it is not open to the Court merely to reject the application under R. 5 as the stage contemplated by that rule is passed when once notice is issued to the other side and there is an enquiry. Whether the application is found untenable on the merits or for defect of form or in the mode of presentation the order that must follow is one that is laid down in sub-R. 3, R. 7, that is refusing to allow the applicant to sue as a pauper. Such an order when passed operates as a bar to any subsequent application of the like nature by virtue of R. 15, O. 33.
5. I shall now turn to examine the judicial decisions to which reference has been made in the course of the argument addressed on behalf of the parties. In 20 C.W.N 669(1), 40 C.L.J 188(2) as well as 20 Bom. 86(3), it was held that there was no distinction between orders of rejection passed under R. 5 and orders of refusal passed under R. 7. The contrary view was taken in 1 Lah. 151(4), 4 Rang. 245(5) and 7 Rang. 359(6). The view which the Madras High Court took in 50 Mad. 63(7) is in line with that taken in the latter set of cases mentioned above. In 60 Cal. 630(8) various authorities were reviewed and it was held that a mere rejection of an application to sue in forma pauperis, without notice to the opposite party, for default in payment of process fees cannot be regarded as an order refusing, to allow the applicant to sue as a pauper within the meaning of O. 33, R. 15 of the Code, so as to bar any subsequent-application of the like nature. The-Rangoon High Court considered the point afresh in 10 Rang. 475(9) and expressed its dissent from the view taken in 4 Rang. 245 and 7 Rang. 359 and adopted that which was laid down in 20 C.W.N 669.
6. It appears that some confusion has been introduced into the consideration of the question by failure to draw as clear line of demarcation between those orders which are passed ex parte under R. 5 and those passed after contest under R. 7. In the first mentioned event the order being in terms one of rejection, and not of refusal to allow the applicant to sue as a pauper, R. 15 cannot come into play at all as it only speaks of “an order refusing to allow the applicant to sue as a pauper,” which could only be passed under R. 7(3). R. 15 must be read in conjunction with R. 7 and not with R. 5. The Courts would obviously be transgressing their legitimate province if they attempt to put such a wide construction on the wording of R. 15 as to include, an order of rejection. The intention of the legislature must be gathered from the actual words used in R. 15 in describing the order of refusal which unmistakably point to sub-R. 3 of R. 7. It is indisputably clear that an ex parte order of rejection passed under R. 5 is not governed by R. 15. I am in respectful agreement with the view taken by the Calcutta High Court in 60 Cal 630.
7. The difficulty arises, in point of principle, when an application to sue in forma pauperis is not rejected but dismissed for defect of form. So far as-the terms of R. 7, sub-R. 2 go there can be no scope for any doubt or dispute that the Court is bound in law to refuse to allow the applicant to sue as a pauper, if after notice to the opposite party and, on a contest raised by him, the application is found to be defective in form. The literal enforcement, of sub-R. 3 of R. 7 must lead occasionally to palpable injustice. It is high time that the legislature makes its intention clear by an appropriate amendment. It is however open to the Courts to so construe the enactment as to avoid patent injustice regard being had to the presumption that the legislature does not intend to do palpable injustice: see 14 Ch D 122(10). To borrow the cogent words of Lord Esher, M.R:
When the language of the legislature construed literally involves such consequences, the Court has over and over again acted upon the view that the legislature could not have intended to produce a result which would be palpably unjust, and would revolt the mind of any reasonable man, unless they have manifested that intention by express words: 23 QBD 461(11).
8. If a benevolent interpretation is possible without violence to the spirit of the enactment, the Courts are bound to resort to it in order to obviate inconvenient or unjust consequences: 9 AC 757(12). Construing sub-R. 2, R. 7 in the light of this principle it cannot be seriously disputed that only such defects of form as unfavourably reflect on the merits of the application must be regarded as justifying an order refusing to allow the applicant to sue as a pauper. It is unnecessary to imagine instances as the present case itself furnishes an apt illustration. Here the application was indeed defective in form as the list of property was not duly verified. Now the lack of verification might be due to carelessness or ignorance, or might be deliberate. If it was deliberate, it would be transparent that the applicant had mora property than what she had specified in the list and would further lend countenance to the adverse plea raised by the opposite party in that behalf. Whether the formal defect was unintentional or designed could be detected only by giving the applicant an opportunity to regularise the list of property by appending the required verification. If she had made the amendment, the formal defect would, have been cured, but if she failed to amend, her failure could be considered as cogent evidence of her having withheld information regarding her resources. This circumstance is such as can be reasonably considered as justifying an order of refusal under sub-R. 3, R. 7. It would thus appear that the question whether an opportunity to amend was given or not becomes important. It is only when the Court is in a position to find that an opportunity to rectify the error of form was not availed of by the applicant that it would be reasonable to apply the bar of res judicata provided in R. 15, O. 7.
9. Section 153 of the CPC, invests the Court with the general power to amend any defect or error in any proceeding. Under that section it may be the duty of the Court to call upon the applicant to make the necessary correction. I am in respectful agreement with their Lordships of the Allahabad High Court when they set aside an order of rejection passed under R. 5, O. 33 as it was passed without giving an opportunity to the applicant to rectify the defect: see 55 All 216(13). Turning to the facts of the present case it is true that the order of rejection was passed after a contest and not ex parte. On the strict letter of the law the Court might have been justified in passing an order under sub-R. 3, R. 7 refusing to allow the applicant to sue in forma pauperis, but it passed the order of rejection specifically under R. 5(a). As pointed out above it would have been more appropriate to give the applicant an opportunity to amend but that was not done. However, the fact that the Court purported to reject the application under R. 5(a) itself shows that the formal defect was regarded as unintentional having no significance calculated to prejudice her case on the merits. In any event the order rightly or wrongly was in fact passed under R. 5(a) and not under R. 7(3). If it was a wrong order the party prejudiced by it ought to have got it set aside according to law. He having failed to do so the order as one passed under R. 5(a) has become final. I have already shown that R. 15, O. 38 has no bearing on the order of rejection passed under R. 5. The applicant's plea must therefore fail. The application is dismissed with costs. Pleader's fees Rs. 25.
10. Application dismissed.
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