RAJ NARAIN SAXENA Vs. BHIM SEN
LAWS(ALL)-1965-5-7
HIGH COURT OF ALLAHABAD
Decided on May 17,1965

RAJ NARAIN SAXENA Appellant
VERSUS
BHIM SEN Respondents





Cited Judgements :-

ICICI BANK LTD. VS. KAPIL PURI AND ORS. [LAWS(DLH)-2017-3-38] [REFERRED TO]
CHEEDELLA RADHAKRISHNA SHARMA AND ORS. VS. RADHAKRISHNAMURTHY AND ORS. [LAWS(APH)-2014-9-176] [REFERRED TO]
RAJENDRA PRASAD GUPTA VS. PRAKASH CHANDRA MISHRA [LAWS(SC)-2011-1-21] [REFERRED TO]
KOMATI REDDY VENKAT REDDY AND ANOTHER VS. V. NIRANJAN RAO, SECRETARY TO GOVT. AFFAIRS, STATE OF TELANGANA, LAW AND LEGISLATURE DEPT, HYDERABAD AND ANOTHER [LAWS(APH)-2018-8-59] [REFERRED TO]
KOKERS 70 MM MOVIE HOUSE VS. KERALA STATE ELECTRICITY BOARD [LAWS(KER)-1984-4-9] [REFERRED TO]
V SREEDHARAN VS. T T NANU [LAWS(KER)-1987-3-34] [REFERRED TO]
PETTA SATYA GOVINDA RAMACHANDRA RAO @ BABJI VS. YARLAGADDA VIJAYA KUMAR [LAWS(APH)-2014-2-53] [REFERRED TO]
P. VENKAT RAMA RAO & ORS. VS. D. RAMAMMA [LAWS(APH)-1975-4-33] [REFERRED TO]
SHANTI VS. SANTOSH [LAWS(RAJ)-2022-1-107] [REFERRED TO]
RAJ NATH DUBEY VS. DY. DIRECTOR OF CONSOLIDATION [LAWS(ALL)-2013-11-3] [REFERRED TO]
INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU VS. SHIVAKUMAR [LAWS(APH)-2014-9-83] [REFERRED TO]
SAHARBAN BEEVI VS. S. MUMTAJ [LAWS(MAD)-2013-2-128] [REFERRED TO]
MOHAMMAD VS. MOHAMMED HAJI [LAWS(KER)-1985-12-15] [REFERRED TO]
MAHBOOB ALI VS. SURESH KUMAR DIXIT [LAWS(ALL)-2015-3-12] [REFERRED TO]
NANDED ZILLA KRUSHI AUDYOGIK SOCIETY LTD. VS. GOVIND AND ORS. [LAWS(BOM)-2014-8-233] [REFERRED TO]
KAINASH RAM KOCHAR VS. STATE OF U P [LAWS(ALL)-2011-7-123] [REFERRED TO]
MOHAMMAD ABBAS MALLIK VS. TAHERA KHATOON [LAWS(PAT)-1973-11-7] [REFERRED TO]
SHARADA BAI AND OTHERS VS. SATYANARAYANA PEETI (SINCE DIED PER LRS) AND OTHERS [LAWS(APH)-2016-11-61] [REFERRED TO]
BASHIR AHMAD VS. SHRIMATI RASHIDA KHATOON [LAWS(ALL)-1974-9-8] [REFERRED TO]


JUDGEMENT

M.C.Desai, C.J. - (1.)THIS revision has been referred to a Full Bench by our brothers Oak and Seth who were of opinion that a decision of a Division Bench of this Court in Nur Muhammad v. Jamil Ahmad, AIR 1919 All 213, requires reconsideration.
(2.)THERE is no controversy about the facts in the case. Opposite Party No. 1, who being the contesting opposite party will be referred to as the opposite party in this judgment, filed against the applicant a suit as a pauper under Order 33 of the Code of Civil Procedure by applying for permission to sue as a pauper in the Court of a Munsif. The application was apparently in proper form and was presented by the opposite party in person. Under Rule 1 of Order 33 any suit may be instituted by a pauper and under Rule 2 every application for permission to sue as a pauper must contain the particulars required in regard to plaints in suits and under Rule 3 it must be presented "to the Court" by the applicant in person. Where an application is in proper form and duly presented the Court is authorised to examine the applicant regarding the merits of his claim of his pauperism, vide Rule 4, but if it is not framed or presented as laid down in Rules 2 and 3 or the applicant is found to be not a pauper or (d) "where his allegations do not show a cause of action" or he has done certain acts, the application must be rejected, vide Rule 5. This Court has added an explanation to this rule to the effect "an application shall not be rejected under Clause (d) merely on the ground that the proposed suit appears to be barred by any law." Where it is not rejected under this provision the Court must fix a date for receiving the applicant's evidence in proof of his pauperism and evidence which may be adduced in disproof thereof. On the day so fixed "the Court shall examine the witnesses produced by either party...... and shall also hear any argument......and......then either allow or refuse to allow the applicant to sue as a pauper", vide Rule 7. Where the application is granted "it shall be numbered and registered, and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner", vide Rule 8. Rule 15 lays down that an order refusing to allow an applicant to sue as a pauper bars a subsequent application of the like nature but he is at liberty to institute a suit in the ordinary manner provided he pays the costs of the State Government and the opposite party. The opposite party valued the claim at Rs. 3,350 and alleged in his application that he was not possessed of sufficient means to pay the court-fee payable on this valuation. The learned Munsif did not reject the application under Rule 5, and fixed a date for receiving evidence and gave notice to the applicant. The applicant appeared before the learned Munsif on the date fixed and filed an objection contending that the opposite party was not a pauper, that he had undervalued the relief, that the suit was beyond the pecuniary jurisdiction of the learned Munsif because the real value of the relief was more than Rs. 5,000 and that the jurisdiction of the learned Munsif was barred by the Zamindari Abolition and Land Reforms Act. The learned Munsif refused to entertain the objection about his jurisdiction; he held, relying upon AIR 1919 All 213 (supra) and other cases, that he had no jurisdiction to go into those questions while considering whether the opposite party should be permitted to sue as a pauper or not. He held that the opposite party was a pauper and permitted him to sue as such and registered the application as a plaint.
The applicant applied to this Court under Section 115, C. P. C. to revise the above order of the learned Munsif. The application came up for hearing before our brother Pathak, who doubting the correctness of the decision of this Court in the ease of Nur Muhammad, AIR 1919 All 213, referred the matter to a Division Bench and the Division Beach has referred it to a Full Bench.

I may also deal at this stage with what happens in an ordinary suit. Under Section 6 of the Code of Civil Procedure no Court has jurisdiction over a suit, the amount or value of the subject-matter of which exceeds its pecuniary limits. Section 15 requires every suit to be instituted in the Court of the lowest grade competent to try it. Under Section 26, every suit must be instituted by the presentation of a plaint or as laid down in Order 38. Section 6 of the Court-fees Act provides that no plaint or application which must be charged with court-fees "shall be filed, exhibited or recorded in any Court...., unless in respect of such document there be paid a fee of an amount not less than that" mentioned in the schedules attached to the Act. Section 3 of the Limitation Act lays down that "every suit instituted......and application made, after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has not been set up as a defence".

(3.)ACCORDING to the explanation, a suit is instituted in an ordinary ease when the plaint is presented to the proper officer and in the case of a pauper, when his application for permission to sue as a pauper is made. The rules regarding plaints are contained in Order 7 of the Code of Civil Procedure. A plaint must contain, inter alia, the facts constituting the cause of action and when it arose, the fact showing that the Court has jurisdiction, the relief and a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees.
If the facts show that the cause of action arose so early that the period of limitation for a suit on its basis expired before the plaint was presented it is the duty of the Court itself to reject the plaint at once, under Section 3 of the Limitation Act. If the suit is barred by time it has no jurisdiction to take any further action. Since in the case of a pauper suit it is filed when an application for permission is presented under Order 33, Rule 1 it can, and ought to, be rejected straightway if the suit was on the date of its presentation barred by time. Under Order 7, Rule 10 a plaint "shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted". Since a pauper suit is instituted by presenting an application for permission and since that application itself is deemed to be a plaint (though only on its being granted) some High Courts have held that the application can itself be returned to be presented to the Court in which it should have been instituted. If it be said that Rule 10 of Order 7 can be applied only after an application for permission has matured into a plaint under Rule 8 of Order 33 and that so long as it has not matured into a plaint it cannot be treated as a plaint and, therefore, cannot be returned for presentation to the competent Court, the only consequence would be that the application will have to be rejected. The provision in Rule 10 of Order 7 is a concession to the plaintiff; instead of the plaint being rejected it is allowed to be returned to him so that he may present it to the competent Court. If Rule 10 did not exist the Court would be bound to reject the plaint. Every authority is bound to see that it has the power which it is asked to exercise. A statutory authority has only these powers which the statute has conferred upon it and has no jurisdiction to exercise any other power. It is not open to the parties to confer any power upon it and it does not become authorised to exercise a power merely because a party applies to it for its exercise. If it cannot exercise it, it must refuse to exercise it. So it is for it to determine before it exercises the power that it possesses it. No statutory provision is required for its doing so; it is its inherent jurisdiction.

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