Decided on May 01,1952

MANGILAL Respondents


Sharma, J. - (1.)THIS is an application by Suganchand to revise the order of the District 'judge, Kotah, declaring the applicant to be a pauper, but calling upon him to file security equivalent to the court-fee payable in the case within one month.
(2.)IT has been argued by the learned counsel for the applicant that the lower court could either reject the application of the applicant if it did not find him to be a pauper or allow him to sue as a pauper, but it could not give the applicant leave to sue as a pauper and at the same time call upon him to file security for the payment of the court-fee. A notice was given to the Government Advocate also of this application for, revision. Ram Avtar Gupta on behalf of the State concedes that there is no provision in law according to which a security can be demanded from an applicant for the payment of court-fee at the time of giving him relief to sue as a pauper. S. B. L. Saksena on behalf of the defendant opposite party also concedes that such an order could not be made.
It is strange that the lower court should have made an order which it has passed giving leave to sue as a pauper and at the same time calling upon the applicant to file security to the extent of the court-fee payable. It is to take with one hand what has been given to him with another. Under Order XXXIII, Rule 7 (3), the Court can either allow or refuse to allow the applicant to sue as a pauper. There is no provision in law according to which any condition may be attached to an order allowing the applicant to sue as a pauper. The lower court ignored the clear provisions of rule 7 (3), Order XXXIII, C. P. C. , and, therefore,"committed an illegality in the exercise of its jurisdiction.

The application is allowed, but as the opposite party has frankly conceded that the order of the lower court cannot be 'supported, and did not take any objection in the lower court also, the parties shall bear their own costs of this revision. .

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