The scope of enquiry and the stage at which cross-examination is permissible in an application for permission to sue in forma pauperis under Order 33 of the Civil Procedure Code, 1908.

Das, J.

1. This is an application in revision against an order of the learned Subordinate Judge of Motihari, dated 23rd April 1919, allowing an application of the opposite party to sue in forma pauperia. The relevant facts are the following. On 17th January 1949, an application under Order 33, Rule 1, Civil P. C., was filed. It is stated by the learned Subordinate Judge that the applicant was examined when she presented the application for permission to sue in forma pauperis. After such examination, the Subordinate Judge was presumably satisfied that the prohibitions mentioned in Rule 5 of Order 33 did not apply. It was accordingly ordered that notice should issue to the opposite party and the Government pleader. The date fixed was 5th February 1949. On that date, the opposite party before the learned Subordinate Judge and petitioner before us, appeared and asked for time to file an objection. Such objection was filed on 2nd April 1949. The question of an enquiry into the alleged pauperism then arose, and on behalf of the applicant for permission to sue in forma pauperis, it was prayed that a commission should issue to examine the applicant who was a pardanashin lady. A commission was ordered to be issued on 4th April 1949, and a pleader named Mr. Indubhusan Banerji was appointed commissioner to take the evidence of the lady. On 6th April 1949, this pleader commissioner obtained the consent of both parties to the examination of the lady at hen village home on 18th April 1949. For some reason or other, the learned pleader for the present petitioner changed his mind, and thought that the date would not suit him, and asked for a postponement. The pleader commissioner fixed 19th April for the examination of the lady. To that date also, the pleader for the present petitioner did not agree, and the matter was heard by the learned Subordinate Judge on that date, who said that the objection made by the present petitioner was frivolous, and directed the pleader commissioner to take the evidence of the lady on that date. The lady was examined on commission, and subsequently certain other witnesses on behalf of both parties were examined on the question of pauperism. On a consideration of that evidence the learned Subordinate Judge came to the finding that the applicant before him was a pauper, and accordingly allowed her to sue in forma pauperis.

2. The objection taken before us is two fold, Firstly, it is contended that the present petitioner was not given an opportunity of cross-examining the lady. Secondly, it is contended that if such an opportunity were given, the petitioner would have been in a position to elicit statements from her which would have shown that she had no cause of action for the claim of dower which she had made. As to the first contention, it seems clear to us that the petitioner had an opportunity of cross-examining the lady, but his pleader failed to avail himself of that opportunity. The order for the appointment of a pleader commissioner to examine the lady was passed on 4th April 1949, and on 6th April 1949, the pleader commissioner obtained the consent of both parties to the examination of the lady on 18th April 1949. The arrangement was that a conveyance would be obtained on behalf of the lady for taking the pleader commissioner and other persons to the locality. Subsequently, the pleader of the present petitioner changed his mind. The matter was then heard in Court, and the learned Subordinator Judge thought that the objection raised by the pleader of the present petitioner was frivolous. In these circumstances, it cannot be reasonably said that the petitioner had no opportunity of cross-examining the lady.

3. The second contention is, I think, based on a misconception regarding the scope of the different provisions of Order 33. Order 33, Rule 1 states that subject to the other provisions of the order, any suit may be instituted by a pauper. The explanation to the rule states who is a pauper. Rule