The filing of an application in forma pauperis commences the suit for the purpose of an application for injunction under Order 39 of the Code of Civil Procedure.

Choudhary, J.

1. Respondent No. 1 filed an application in the court below for permission to sue in forma pauperis under the provisions of Order 33 of the Code of Civil Procedure. He also made an application under the provisions of Order 39 of the Code of Civil Procedure for an injunction, restraining the appellant from proceeding with certain execution case until the final disposal of his application to sue in forma pauperis. The court below allowed that application and passed an order of injunction restraining the appellant from Proceeding with the aforesaid execution case. Being thus aggrieved the appellant preferred the present appeal.

2. This case was placed for hearing before Sinha and Dayal, JJ., before whom an argument was put forward on behalf of the appellant that Order 39 of the Code of Civil Procedure has no application until the application to sue in forma pauperis has been allowed, and there is no suit in which an order of injunction can be passed. Since there appeared difference of opinion amongst the several High Courts on the question relating to the point at issue, their Lordships referred/the following question of law for decision by a larger Bench :

"Whether the filing of the application in forma pauperis is equivalent to the filing of a plaint commencing the suit for the purpose of an application for an injunction under Order 39 of the Code of Civil Procedure?"

This Bench has, therefore, been constituted for deciding the above question of law.

3 It has been submitted on behalf of the appellant that an application to sue in forma pauperis is deemed to be a plaint in the suit when it is granted and till then there is no suit in which an order of injunction under Order 39 can be passed. On behalf of respondent No. 1, the pauper applicant, it has been contended that the suit is instituted as soon as an application to sue in forma pauperis is filed,

4. Various decisions have been cited before us by both the parties for and against the proposition that an application to sue in forma pauperis is a composite document containing a plaint and a prayer for permission to sue as a pauper and that such an application is equivalent to plaint from the date of the presentation of the application itself. In Stuart Skinner V/s. William Orde ILR 2 All 241, their Lordships of the Judicial Committee held that the petition to sue in forma pauperis was a composite document containing the plaint and the prayer for permission to sue as a pauper. That was a case governed by the old Civil Procedure Code. That principle has, however, been accepted by different High Courts in some of the cases which were covered by the present Civil Procedure Code. Reference may be made in this connection to the case of Bank of Bihar Ltd. V/s. S. Ramchanderji Maharaj ILR 9 Pat 439: (AIR 1929 Pat 637) (B). A contrary view was taken in other cases. A reference may be made to the case of Chunna Mal V/s. Bhagwant Kishore, AIR 1936 All 584 (FB) (C) and Gupteshwar Mis-sir V/s. Chaturanand Misir, AIR 1950 Pat 309 (D).

In my opinion, however, it is not necessary for the purpose of answering the question in the present case to examine the correctness or otherwise of the decisions in the above cases on this point, because as I will presently show, whether such an application is equivalent to a plaint or not from the very date of its presentation, the suit undoubtedly commences on its presentation so as to attract the application of Order 39 of the Code of Civil Procedure. I may, however, make a reference to the above Patna Case in AIR 1950 Pat 309 (D). In that case a Bench of, this Court took the extreme view that so long as the question of pauperism has not been decided the court had no jurisdiction to determine its own jurisdiction.

A contrary view Has been taken by a Division Bench of the Nagpur High Court in Channulal Semi V/s. Shama Ramcharan, (S) AIR 1955 Nag 259 (E). Sinha and Dayal JJ.. in their order of reference doubted the correctness of the ab