Order 33 Rule 5 CPC is not exhaustive of cases in which an application for permission to sue as pauper can be rejected



( Before : M.L. Jain, J )

NAZIR AHMED — Appellant



First Appeal No. 119 of 1982

Decided on : 07-02-1984

Civil Procedure Code, 1908 (CPC) — Order 33 Rule 5

Cases Referred

Raj Narain Saxena Vs. Bhim Sen and Others, AIR 1966 All 84 : (1965) 35 AWR 393
Counsel for Appearing Parties

R.S. Kela and Usha Kumari, for the Appellant;


M.L. Jain, J.

(1) The facts of this appeal are that the property bearing No. 2929 Sarai Khalil, Sadar Bazar, Delhi consisting of three rooms, measuring 9’x11′,8’x11′ and 11’x11′, were in the tenancy of the appellant wherein he was running a grocer’s shop for 25 years. These were demolished during the emergency in 1975-76. An assurance was however, given to him that an alternative accommodation will bs provided. On the basis of that assurance the appellant was entitled to an allotment of 40 sq. mtr. but he was allotted by the Delhi Development Authority (herein D.D.A.), 10 sq. meter of land at Shahzada Bagh, Phase-1, Plot No. 280. The D.D.A. states that besides 10 sq. mtrs. of land he was allotted three houses one in his name and two in the names of his sons each comprising two rooms with store, kitchen and lavatory. The area covered by each tenement was 25 sq. mtr. The appellant, however, does not seem to be satisfied and filed an application on 22nd May, 1979 under Order 33 Rules I and 2 of the CPC as an indigent person in which he prayed that he had no means to pay the Court fees and that a decree for recovery of Rs. 50,000.00 for compensation for loss of business be passed in favor of the plaintiff or in the alternative the D.D.A. be directed by means of a mandatory injunction or declaration to allot to him a plot of 40 sq. mtr. in place of the illegal demolition.

(2) The D.D.A. contested the factum of indigence and also contended that the appellant had no cause of action and that the suit was barred by limitation.

(3) The learned Additional District Judge by his judgment dated 1st December 1980 held that the appellant was holding a plot which was of the value of Rs. 2000.00 per sq. mtr. and besides he had residential accommodation. His case that he was earning only Rs. 2-50 per day was not correct. He failed to prove that he is an indigent person and no doubt the Court could grant him time to pay Court fees, but the application was dismissed because the appellant was given much more than what was due to him and yet he wanted to get still more by setting up false pleas. The application disclosed no cause of action and further it was barred by limitation. Hence, the present appeal. It was admitted forma pauperis on 30-4-82.

(4) The learned counsel for the appellant submitted that if the court has not rejected the application under Order 33 Rule 5 CPC and issued notice and entered upon enquiry of indigence, then it could not dismiss the petition on the basis of want of cause of action or bar of limitation under the said Rule 5. Reliance was placed upon Dargah of Saint Maskeenshah Barena Pir, Chhatarpur and others v .HardayalParsad and others, Air 1941 Nagpur 330. I do not think that this is a correct proposition of law. There appears to be no bar that after the merits of indigence have been discussed, the court cannot dismiss the petition on any grounds stated in Rule 5. Order 33 Rules 7(1A) and (2) clearly point to the contrary. Indeed, in Raj Narain Saxena Vs. Bhim Sen and Others, , it was even held that Order 33 Rule 5 Cpc is not exhaustive of the circumstances in which an application for permission to sue as pauper can be rejected. It can be rejected in other circumstances to secure the ends of justice or prevent abuse of the process of the court. When in reply to the notice issued under Order 33 Rule 6 the opposite party appears and disputes the correctness of any statement in the application relevant to the question of court’s jurisdiction or of the court-fee payable on the plaint or of limitation, the court has to decide the dispute before it decides the question of pauperism. Mt. Hira Dei v. Gokul Chand Air (29) 1942 Oud 361, has held that the court is entitled to examine the applicant not only as regards the property of the applicant with a view to determining whether the applicant is or is not possessed of sufficient means to enable him to pay the court fee but also to examine him as regards the merits of the claim. This examination must necessarily be directed ascertain whether the allegations made by the applicant do or do not show a cause of action for the. suit. Therefore, the court is justified in taking into consideration the statement of the plaintiff-applicant in addition to the allegations in the plaint for the purpose of determining whether the plaintiff-applicant had a subsisting cause of action for the suit. I, Therefore, see no merit in the contention that having held that the applicant was not an indigent person, the court should have proceeded to give him time to pay the court fees and could not reject the application on any of the grounds stated in Rule 5, except those stated in Clauses (b), (c) and (e).

(5) According to his own showing, the appellant got 10 sq. mtrs. of land in an industrial complex besides a house to live in even if we exclude the houses that were allotted to his two sons. All this property is far more valuable than what was lost by the appellant. That apart, he has not shown how he has calculated his compensation at Rs. 50.000.00 . He has thus failed to show any cause of action. He has further failed to mention the date when the demolition took place, so that the court could determine whether the suit was barred by limitation or not. He has purposely left it vague. He should have stated that the demolition took place in or after May, 1976. He has not done so. His suit is, Therefore, barred by time. The court below was right in rejecting his application under Order 33 Rule 5 CPC. I see no force in this appeal. It is hereby dismissed.

There will, however, be no order as to costs.

(1984) AIR(Delhi) 245 : (1984) 25 DLT 346 : (1984) 7 DRJ 60 : (1984) RajdhaniLR 395


Categories: CIVIL