- (1.) THE opposite party filed an application under Order XXXHI, Rule 2, Civil Procedure Code for permission to sue as a pauper. She also attached a separate plaint to her pauper application claiming par tition of a house and a shop valuing her share at Rs. 26, 000/- and odd. This application was contested by the present petitioners be fore the lower court on the ground mainly that the opposite party was not pauper. The lower court found that she was a pauper and allowed her to sue as pauper. It is against this order that this revision has been filed.
(2.) THE main argument of the learned counsel for the petitioners is that the appli cation for permission to sue as a pauper under order XXXIII, Rule 2, Civil Procedure Code should have been rejected by the lower court under Rule 5, of Order XXXIII, Civil Procedure Code as it was not framed in ac cordance with Rule 2 of Order XXXIII, Civil Procedure Code. Rule 2, it is pointed out, provides that an application for permission. to sue as a pauper shall contain the particu lars required in regard to plaints in suits, a schedule of any moveable or immovable pro perty belonging to the applicant, with the estimated value thereof, shall be annexed thereto and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. The argument is that the application for permission to sue neither contained the particulars required in regard to plaints in suits nor any schedule of immovable property belonging to the appli cant. Reference is also made to Rule 8 of Order XXXIII, Civil Procedure Code which provides that where the application is grant ed, it shall be numbered and registered and shall be deemed to be the plaint in the suit and the suit shall proceed in all other res pects as a suit instituted in the ordinary man ner. The argument proceeds that the parti culars in regard to the plaint not having been mentioned in the application for per mission to sue, it could not be converted into a plaint as required by Rule 8 of O. XXXIII, Civil Procedure Code and therefore, the ap plication being defective, the court had no option but to reject the application for per mission to sue under R. 5 (a) of O. XXXIII, Civil Procedure Code. I have heard learned counsel for the parties and I am of the view that this argument is not tenable in law. No doubt Rule 2 of Order XXXIII provides that the application for permission to sue shall con tain the particulars required in regard to plaints in suits and that it shall also contain a schedule of movable and immovable pro perty signed and verified as a plaint, but this rule, to my mind, applies only to those cases where the application for permission to sue has been filed at the very inception and not after or simultaneously with the filing of an ordinary plaint. When the plaint has already been filed as an ordinary plaint, then it a hardly necessary to incorporate the particu lars of the plaint in the application for per mission to sue and there will be substantial compliance with Rule 2 of Order XXXEII, Civil Procedure Code if the plaint contains all the necessary particulars and the same have been properly verified. In so far as the schedule of movable and immovable property is concerned also there was in this case, to my mind, a substantial compliance with R. 2 inasmuch as the application for permission to sue under Order XXXIIl, Rule 2, Civil Procedure Code contained a definite averment that the applicant- opposite party was not pos sessed of any immovable property other than the subject-matter of the suit, (which was detailed in the plaint) and the application contained a schedule of the property posses sed by her in the schedule attached to the application. There was_ thus substantial com pliance with the provision with regard to the frame of the application under Rule 2 of Order XXXIII, Civil Procedure Code and was not liable to be rejected on the techni cal ground that the contents of the plaint were not repeated in the application for per mission to sue. There being a substantial compliance the Court under its inherent power could direct continuance of the plaint which had already been filed and this in fact the lower court did by the order impugned in this revision. The view which I take is supported by a line of authorities of various, High Courts.
(3.) IN Ravji Patil v. Sakha Ram, (1884) ILR 8 Bom 615 on the presentation of a plaint it appeared that the plaint was not properly stamped. The plaintiff moved an application for permission to prosecute the suit in forma pauperis. The point was raised that the application not being in proper form was liable to be rejected. The objection was rejected and it was observed that the court may allow a suit to be continued as well it may allow one to be brought originally in forma pauperis and it is not unusual for a man who begins a suit quite solvent to be reduced to insolvency before it is finished.;