Mukherjea, J. - (1.) This Rule is directed against an order passed by a learned Subordinate Judge granting maintenance pendente lite to a wife and her minor son on an application made by her for leave to sue as a pauper for maintenance. The main application is still pending. The questions of law raised on behalf of the husband are as follows :-- (1) Is the Court competent to make an order for maintenance pendente lite on an application for leave to sue as a pauper before such leave is granted? (2) Can an order for maintenance pendente lite be made at all in a suit for maintenance where the rights of the parties are governed by the Hindu Adoption and Maintenance Act?
(2.) To determine the first question it is necessary to consider some of the provisions of Order 33 of the Code of Civil Procedure which relate to suits by paupers. Rule 2 enjoins that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits and that it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. Rule 3 provides for presentation of the application to the Court and Rule 4 for examination of the applicant. Rule 5 provides for rejection of the application for permission to sue as a pauper on certain preliminary grounds. Rule 6 provides that where the Court sees no reason to reject the application on any of the grounds stated in 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 prescribes the procedure at hearing. Sub-rule (3) of Rule 7 provides that the Court -shall allow or refuse to allow the applicant to sue as a pauper. Rule 8 provides as follows :-- "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, except that the plaintiff shall not be liable to pay any court-fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit."
(3.) Rule 2 of Order 33 makes it clear that an application for permission to sue as a pauper is not a plaint, for otherwise no provision need have been made to enjoin that it shall contain the particulars required in regard to plaints in suits or that it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. Moreover Rule 8 makes it clear that until and unless the application is granted, the application is not to be deemed a plaint.;