The Judgments of the Court were as follows:—
Ghose, J.:— The subject-matter of this rule is an order of the Subordinate Judge of Mozufferpore under sec. 407, C.C.P, rejecting an application for permission to sue as a pauper. The rule was granted under sec. 622 of the Code calling upon the opposite party to show cause why the said order should not be set aside.
It has been contended on behalf of the opposite party that this Court has no power to interfere with the order of the Subordinate Judge under the said section of the Code.
The suit of the Plaintiff, Petitioner, before us, as disclosed in his plaint presented to the Court below, is to this effect, that according to the custom which governs the Asthul at Mouzah Mirzapore, of which the Defendant (the opposite party) is the Mohunt, he is enjoined to observe a life of celibacy; that he has, notwithstanding this rule, entered into matrimonial alliance with a certain lady; that he has thereby forfeited his right to the Mohuntship; and that the Plaintiff who is his senior chella is entitled to become Mohunt in his place. And he asks that it be declared that the Plaintiff has become entitled to be Mohunt of the Asthul in place of the Defendant, and to enter into possession of all the properties appertaining to the Asthul and that he be put into such possession.
The Subordinate Judge has found that the applicant is a pauper; but he has, notwithstanding such finding, rejected the application upon the ground that the allegations of the Petitioner do not show a right to sue.
We may at once state that if we could confine ourselves entirely to the conclusion at which the Subordinate Judge has arrived, viz., that the allegations of the applicant do not show that he has a right to sue, there would be no doubt that we could not interfere with the order of the Court below under sec. 622. But this conclusion is expressly based upon certain grounds assigned in the order of the Subordinate Judge, which we now propose to notice. The first ground, given by him, is that property once vested cannot be divested unless the applicant can show that there is law or custom by which the opposite party can be divested of the Mohuntship of Asthul Mirzapore. But looking at the plaint, it will be observed that, that is the very matter which the Petitioner proposes to prove; for he says that, according to custom, if the Mohunt, for the time being, enters into a married life, he thereby forfeits his right to the Mohuntship, and that the next person in order of succession succeeds to the Mohuntship. The next ground, assigned by the Subordinate Judge, is a ground which is almost unintelligible, and the learned Advocate-General, who appeared for the opposite party, frankly acknowledged it to be so. The Subordinate Judge says:—“The absolute rights of the parties cannot be determined, i.e, whether by marriage Defendant has forfeited his right, and whether that right to the property attached to the Asthul of Mirzapore vests in the Plaintiff after the marriage of the opposite party cannot be decided in an action in formâ pauperis.” Perhaps the next and the last ground that he gives explains what he means by the passage which we have just quoted. It is this “The applicant has not yet been made a Mohunt of Asthul Mirzapore, and therefore has not got any right of action to sue as a pauper.” In other words, that until the applicant has been made de facto Mohunt of the Asthul, he is not entitled to sue as a pauper, and the question that he raises in his plaint cannot be determined. These are the grounds upon which the conclusion of the Subordinate Judge that the applicant's allegations do not show a right to sue is expressly based; and the question arises whether the Subordinate Judge has not failed to exercise a jurisdiction which was vested in him or has not acted in the exercise of his jurisdiction illegally.
It has been contended by the learned Advocate-General that all that can be said of the order of the Subordinate Judge is that he has made a mistake in law in the grounds that he has assigned in rejecting the application of the Petitioner, but that he had jurisdiction to deal with the matter, and that he has exercised that jurisdiction by finding that the allegations of the Petitioner do not show a right to sue; and that it is not open to us to examine the propriety or otherwise of the grounds assigned by him in arriving at the conclusion at which he has arrived. He has, in support of his argument, referred to the case of Mathura Nath Sarkar v. Umes Chandra Sarkar , decided by Maclean, C.J, and Banerjee, J., and also to the case of Amir Hassan Khan v. Sheo Baksh Singh , decided by the Judicial Committee of the Privy Council. In the first mentioned case, the Court of first instance ordered a plaint presented to it to be returned to the proper Court under sec. 57, cl. (a), of the Civil Procedure Code. The Court of Appeal, acting under sec. 588, cl. 6, set aside such order, and directed the original Court to hear the case; and this Court held upon an application presented by the Defendant against the order of the Court of Appeal, that it had no jurisdiction to interfere with such an order under sec. 622 of the Code; for it could not be said that Court acted in the exercise of its jurisdiction illegally, or with material irregularity, simply because its decision as to the jurisdiction of the first Court to entertain the suit was erroneous in law. In other words, what they held was this, that the District Judge had jurisdiction to deal with the matter which was before him, and in the exercise of that jurisdiction he held that the suit could be entertained I by the Court of first instance, and that the mistake, if any, that was committed by the District Judge, was but a mistake in law. In the other case Amir Hassan Khan v. Sheo Baksh Sing , the main question raised was whether the suit was barred by res judicata; and some other questions as to the right of the Plaintiff in connection with a mortgage transaction were also raised. The District Judge on appeal held that the questions raised should be decided in favour of the Plaintiff, and accordingly upheld the decree made by the Extra Assistant Commissioner in the Plaintiff's favour. The Judicial Commissioner was moved under sec. 622, and he took a view of the matter contrary to that which was adopted by the District Judge. What the Judicial Committee held in that case was that the District Judge had jurisdiction to decide the question before him One way or the other, and, if he made a mistake, it could not be set right by an application under sec. 622.
There are, however, some other cases which we think it necessary to refer to upon the subject. In the case of Sew Bux Bogla v. Shib Chunder Sen , where an application was made to this Court under sec. 622 for the purpose of setting aside an order which purported to-be one under sec. 295 of the Code, Trevelyan, J., set it aside, being of opinion that sec. 295, under which the order was made, had no application to the case; and, in delivering judgment, he observed, amongst other matters, as follows:—“Can I in this case say that the Small Cause Court,” to use the words of the Privy Council, that is in the case of Amir Hassan and of the section (that is, sec. 622 of the Code), “exercised their jurisdiction illegally or with material irregularity? It is not easy always to draw a clear line between an illegal exercise of jurisdiction and a mistake of law. If A sued B for some property, and the Court gave a decree to C, who was not a party to the suit, this would come clearly under this section. The adoption of a procedure different from that provided by law and such as to cause material injury to the suitor could, I think, be dealt with by sec. 622 The application of a section of the Code to a case which it does not apply stands, I think upon the same footing.” In the case of Rahim Bux v. Nundo Lal Gossami , where the lower Court had, under sec. 174 of the Bengal Tenancy Act, set aside a sale, and thereupon an application made by the purchaser to this Court, an objection was raised as to the power of this Court to grant relief under sec. 622 of the Code, a Divisional Bench (Prinsep and Beverley, JJ.) did interfere with the order of the Court below upon the ground that the deposit made was not a proper deposit and in strict compliance with the provisions of sec. 174 of the Bengal Tenancy Act, though the lower Court was of a contrary opinion. In the case of Jugobundhu Pattuck v. Jadu Ghose Alkushi , where the District Judge, in deciding a suit for rent instituted by one of the co-sharers in a joint property, who had been receiving his share of the rent separately was of opinion that sec. 188 of the Bengal Tenancy Act prohibited the Court from entertaining a suit in the form in which it had been framed, and therefore dismissed the suit; this Court, on an application under sec. 622 of the Code, set aside the judgment of the District Judge upon the ground that, in the exercise of his jurisdiction, he had acted illegally, because sec. 188 of the Bengal Tenancy Act had no application to the case. The view that was expressed in this case was very nearly the same ay was adopted by Trevelyan, J. in the case of Sew Bux Bogla v. Shib Chunien Sen , to which we have already referred. In the case of Birj Mohan Tkakur v. Rat Umanath Ckowdhry , where a purchaser at a Court sale, alleging that he had been misled by misrepresentation as to the extent of the estate which had been put up for sale, obtained, on his petition before confirmation, a summary order, setting aside the sale but which order was cancelled by the High Court under sec. 622 of the Code, the Judicial Committee held that the High Court was right in reviewing the order of the Court below under sec. 622 of the Code: The order was an order made under sec. 313, which section, in express terms, is limited to a case in which the judgment-debtor has no saleable interest in the property Sold. The judgment debtor in that case had some saleable interest, but, notwithstanding that, the Subordinate Judge set aside the sale. And the Judicial Committee, in delivering the judgment, observed as follows:—“Sec. 313 applies to the purchaser, and its scope is limited to the case of a person whose property is purported to be sold and who had no saleable interest therein, which is not this case. Here there was an order for sale, and the property was put up for sale, but there was no order confirming the sale. Under sec. 312, if no such application as is mentioned in sec. 311 is made, there is only one duty left to the Court, viz., to pass an order confirming the sale as regards the patties to the suit and the purchaser. The Subordinate Judge refused to do that and set aside the sale, and directed the purchase-money to be refunded on certain terms. In so doing, he declined to exercise a jurisdiction which he had, and exercised one which did not belong to him,” and so on. What the Judicial Committee meant to lay down was, as we understand it, and expressed by Banerjee, J., in the case of Mathura Nath Satkar v. Urns Chandra Sarkar to which we have already referred, “that a case comes within the scope of the first two clauses,” (that is, of sec. 622), “not only where a Court has tried a case which it has no power to try, or has failed to try one which it has power to try; but also where it has applied a course of procedure which is not applicable to it.”
Now, referring to the judgment of the Subordinate Judge in this particular case, it seems to us quite clear that he has not directed his mind to the particular matter which he was called upon by sec. 407, clause (c) to investigate. He addresses himself to the merits of the case, to the rights of the parties, and to matters which are entirely foreign to the enquiry that he had to make. What he does really is that he applies a course of enquiry to the matter he had to investigate under sec. 407, which was not applicable to it; and he thereby fails to apply to the matter a course of enquiry which was applicable. If he had confined his enquiry to the allegations as made in the plaint, and if he had said that those allegations do not show a sight to sue, it is extremely, doubtful whether this Court could interfere with his order under sec. 622, however; wrong that order might be. But he does not do so; rather he introduces considerations which are entirely foreign to the enquiry 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. We think, having regard to the law and the authorities on the subject, as we understand them, that the Subordinate Judge has, in the exercise of his jurisdiction, acted illegally in this matter.
We have considered the allegations in the plaint, and, as they stand, there is nothing to show that the Petitioner has no right to sue within the meaning of sec. 407 of the Code, so as to warrant the rejection of his application. We accordingly set aside the order of the Court below and remit the case to that Court with direction that the plaint be admitted in formâ pauperis, the other points arising under sec. 407 having been found in favour of the Petitioner, and the trial proceeded with according to law. We make no order as to costs.
Ameer Ali, J.:— I agree.
Rule made absolute.