R.S.Narula, J. - (1.) THIS is a petition for revision of the order of the Court of Shri M.S. Ahluwalia, Subordinate Judge 1st Class, Patiala, dated November 21, 1975, allowing the plaintiff -respondent leave to sue in forma pauperis. It is common ground between the parties that the application of the plaintiff -respondent under Order 33 Rule 3 of the Code was not presented by her in person. It cannot be disputed that such an application cannot be allowed as the application must be presented in accordance with the statutory requirements of the rule. The only ground on which Mr. G.S. Grewal, Learned Counsel for the plaintiff respondent, has tried to support this order is that the defendant's petition for revision of the order passed by the trial Court on an application of the defendant declining to grant the said application for dismissing the petition for leave to sue in forma pauperis having teen dismissed by this Court (Hon'ble M.L. Verma, J.) on July 14, 1975, it is no more open to the defendant to raise that objection. It is true that the defendant bad made the application to the trial Court for dismissing the petition for leave to sue in forma pauperis on account of non -compliance with the mandatory requirements of Order 33 Rule 3. That application was dismissed. The defendant did come up in revision to this Court, but the order passed in the revision petition by Verma, J. on July 14, 1975 was in the following terms: Mr. Kedar Nath Tewari, the Learned Counsel for the petitioner, withdraws this revision petition as premature stating that in case the Court grants permission for leave to sue (in) forma pauperis to the plaintiff, the petitioner would agitate (attack) the said order on the ground of want of jurisdiction So, I dismiss this revision petition as withdrawn, being premature, with no order as to costs. The above order does not go against the defendant at all. The learned Judge in his discretion merely postponed the decision on the solitary issue that arose before him in otherwise succeed on merits to prove her claim of being a pauper. Now that the event envisaged in the order of Verma, J. has occurred, it is open to the defendant -petitioner to urge the same ground again in view of the express words of the order of the learned Judge.
(2.) RULE 2 of Order 33 requires that every application for permission to sue as a pauper must contain the particulars required in regard to plaints in suits, etc. Rule 3 of Order 33 further states that notwithstanding anything contained in the rules contained in the Code, the application for leave to sue In forma pauperis shall be presented in the Court "by the applicant in person" unless he is exempted from appearing in Court. It is nobody's case that the plaintiff -respondent had been exempted by any law from appearance in person in Court. The condition precedent for entertaining and adjudicating upon an application for leave to sue in forma pauperis under sub rule (1) of rule 4 of order 33 of the Code is that the application must be: - (i) in the proper form (as detailed in rule 2 of Order 33); and (ii) duly presented, that is presented in conformity with the requirements of rule 3. It is only when the requirements of rules 2 and 3 of Orders 33 are fulfilled that the Court is authorised by sub -rule (1) of rule 4 of Order 33 to examine the applicant (or his agent when the applicant is allowed to appear by agent), and then to proceed with the trial of the application on merits. Rule 5 of Order 33 enjoins on the Court a statutory duty to reject an application for leave to sue informs pauperis where it is either not framed as required by rule 2 or not presented in the manner prescribed by rule 3. I am afraid the trial Court bad no jurisdiction at all to proceed with the application for leave to sue in forma pauperis when the same had not been presented in person by the plaintiff -respondent who had not been exempted from personal appearance. The trial Court has in the present case failed to exercise jurisdiction vested in it by rule 5, and has really declined to do so. The trial Court had on jurisdiction to dismiss the defendant's earlier application wherein the dismissal of the plaintiff's application (under Order 33 Rule 3) had been prayed for. The earlier order of trial Court having merged with the order under revision, both have to be set aside.
(3.) FOR the foregoing reasons I allow this petition, set aside and reverse the order of the trial Court and reject the application of the plaintiff -respondent for leave to sue in forma pauperis under rule 5 of Order 33 of the Code. This would not debar the plaintiff -respondent from making a fresh application in conformity with rules 2 and 3 of Order 33 of the Code, if so advised. In the circumstances of the case the parties are left to bear their own costs.;