RATNA BAHADUR RAI Vs. BIR BAHADUR RAI
LAWS(SIK)-1983-9-1
HIGH COURT OF SIKKIM
Decided on September 09,1983

RATNA BAHADUR RAI Appellant
VERSUS
BIR BAHADUR RAI Respondents


Referred Judgements :-

AMIRTHAM V. ALWAR [REFERRED TO]
KUL BAHADUR THAPA V. KAZIMAN TAMANG [REFERRED TO]
ALLAHABAD HIGH COURT IN RAMZAM ALI V. SATUL BIBI [REFERRED TO]
KALAWATI V. RUPNARAYAN [REFERRED TO]
VIJAI PRATAP SINGH AND RAMJIWAN MISIR VS. DUKH HARAN NATH SINGH AND IN BOTH THE APPEALS [REFERRED TO]
STATE OF HARYANA VS. DARSHANA DEVI [REFERRED TO]
TARACHAND GHANSHYAMDAS VS. STATE OF WEST BENGAL [REFERRED TO]


JUDGEMENT

- (1.)This is a revision against the order of the learned District Judge granting the application of the plaintiff-respondent for leave to sue as a pauper under Order 33 of the Civil P. C., as it stood before the Civil P. C. (Amendment) Act, 1976, the latter Act not having been applied to this State as yet. An order granting or refusing an application for leave to sue in forma pauperis is a "case decided" within the meaning of Section 115 of the C. P. C. and is, therefore, open to revision. This is what has been held by this Court in Kul Bahadur Thapa ] Kaziman Tamang, (1978) 2 Sikkim LJ 12, referred to by Mr. Udai P. Sharma, the learned Advocate for the petitioner, where this Court has relied inter alia on the Full Bench decision of the Allahabad High Court in Ramzam Ali v. Satul Bibi, AIR 1948 All 244 as an authority for the purpose. It is good that the law has been found to be so, for if orders refusing leave to sue in forma pauperis were not revisable, many more paupers would have been, to borrow from the observations of Krishna Iyer, J., in State of Haryana v. Darshna Devi, AIR 1979 SC 855 at p. 856, "priced out of the justice market by insistence of court-fee and refusal to apply the exemptive provisions of Order 33 of the Civil P. C., by the trial Courts", Krishna Iyer, J., observed further that "the Court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fees, is fully reviewed by this Court". In Kalawati v. Rupnarayan, AIR 1980 Sikkim 46 at p. 47, this Court referred to a Division Bench decision of the Calcutta High Court in Tarachand v. State, AIR 1955 Cal 258 where Chakravartti, C.J., observed that by levying court-fees the State in fact sells justice. I should, however, note that while Krishna lyer, J., in the decision cited hereinabove, expressed his poignant feeling that, no State, it seems, has, as yet, framed rules to give effect to the benign provisions of the legal aid to the poor ... ... although several years have passed .. ... ..." and that "Parliament is stultified and the people are frustrated" in the State of Sikkim, however, some beginning has been attempted by the Sikkim Court-fees (Exemption and Miscellaneous Provisions) Act, 1983, where under it has been provided that "no court-fees shall be payable by a person whose annual income from all sources does not exceed rupees twenty thousand".
(2.)But this Act, though receiving the assent of the Governor on 4-4-1983, which is incidentally or coincidentally the date on which the impugned order was made, has been enforced on and with effect from 1-5-1983, that is, about a month after the impugned order was passed and, therefore, the provisions of this Act could neither be invoked by the plaintiff nor could be applied by the Court while making the impugned order. Before me also, neither the counsel for the petitioners, nor the counsel for the respondent, nor the Government Advocate has advanced any argument as to whether this Act of 1983, being an adjectival one, would or would not apply to pending proceedings also and would or would not enable the plaintiff to claim the benefit of its provisions exempting payment of court-fees. But even then I would have considered the question and would have requested the learned counsel for the parties to make their respective submissions on this question, if I were not satisfied that the impugned order by the learned District Judge granting the plaintiff leave to sue in forma pauperis is in perfect order and is unassailable in revision.
(3.)Rule 5 of Order 33 of the Civil P. C. provides for rejection of an application for permission to sue as a pauper in limine on certain grounds specified therein. Rule 6 provides that where the Court does not reject the application under Rule 5, it shall fix a day 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 Rule 7, however, provides that in spite of non-rejection of the application in limine under Rule 5, it is open to the opposite party to urge at the hearing under Rule 7 that on the face of the application and of the evidence, if any, recorded by the Court, one or more of the prohibitions specified in R.5 is or are attracted and that the application for leave to sue as a pauper is to be disallowed on that ground. No citation should be necessary for this too obvious a proposition which has also been stated by this Court in Kul Bahadur Thapa v. Kaziman Tamang, (1978) 2 Sikkim LJ 12 at p. 14: (AIR 1981 NOC 122) (supra) and the proposition is in perfect consonance with the principle of audi alteram partem which requires that any party affected by any order in any proceeding must be allowed an opportunity to be heard against such order. Since the non-rejection of an application by a Court under Rule 5 would obviously take place at a stage before the opposite party is served with any notice of the application, the opposite party, after appearance, must have reasonable opportunities to show that the application was liable to be rejected because of one or more of the prohibitions in Rule 5. Rule 7 (2) expressly incorporates such a provision and, therefore, in this case, in spite of the trial Court not having rejected the application in limine under R.5, it was open to the defendant-petitioner to urge at the hearing of the application under Rule 7 that the application was to be disallowed because of one or more of the prohibitions specified in Rule 5.


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