Mere omission to include an item of property in the pauper application is not a non-compliance with the provisions of Order 33, Rule 2, C. P. C. which must entail the rejection of the application under Rule 5 (a).

( 1 ) THIS is an application under Section 115, C. P. C. by the petitioner directed against an order passed by the Subordinate Judge, 1st Court, Alipore, on 31-5-52 rejecting the application filed by him to sue In forma pauperis. The learned Judge reject ed the application holding that the petitioner had not succeeded in satisfying the Court that he was a pauper within the meaning of Order 33, C. P. C.

( 2 ) THE matter has been argued before us at some length both on the point whether the petitioner is a pauper as also on the point whether the application filed by him before the lower Court under Order 33, Rule 1, C. P. C. complied with the provisions of law. It appears that the petition with which the plaint was annexed was not signed and verified in the manner laid down by law as required, under Order 33, Rule 2, C. P. C. On this account a preliminary objection was raised in the lower Court, by the opposite party who contended that the application to sue in forma pauperis was not maintainable as the pauper petition itself had not been signed and verified. The learned Judge, however, by his order dated 26-4-52 overruled the objection and allowed the petitioner, for the ends of justice, to sign and verify the petition in the manner provided in Order 33. The petition was, thereupon, signed and verified by the petitioner on 24-5-52.

( 3 ) IT has been contended before us by the opposite party that the order passed by the learned Judge on 26-4-52 allowing the petitioner an opportunity to sign and verify the pauper petition was illegal and as the pauper petition had not been signed and verified initially that was a fatal objection to the maintainability of the petition itself by reason of the provisions contained in Rule 5, Order 33. In support of this contention the learned Advocate for the opposite party has drawn our attention to two cases viz. , the case of --'narsiah v. Vithalingam Thingandas', decided by the Lower Burma Chief Court and reported in --16 Ind Cas 83 (Low Bur) (A)', where it has been held that Rule 5 of Order 33 leaves the Court no option where an application for leave to sue as a pauper is defective and where the verification of the statement is not in accordance with, the rule for verification of pleadings as stated in Order 6, Rule 15 the Court is bound to reject the application. The second case to which our attention has been drawn is the case of -- 'mt. Umrao Jahan Begam v. Hakimunnissa', AIR 1942 Oudh 169 (B), where it has been observed inter alia that if the application was not framed and presented in a manner described by Rules 2 and 3 of Order 33, the Court could have rejected the application under Rule 5 (a) of Order 33 and that such an order could not create a bar in the way of the applicant presenting a fresh application after complying: with the requirements of Rules 2 and 3 of Order 33. It was also observed in that case that it was also open to the Court to have returned the application to the applicant and to call upon him to supply the defects and omissions and make it conformable to the requirements of Rules 2 and 3.

( 4 ) RELYING upon the second ruling the learned Advocate contends that what the learned Judge did in the present cases was not to return the pauper application for refiling it after proper verification but what he did was to allow the petitioner to sign and verify the petition as it stood. So far as this point is concerned, where, as in the present case, no question of limitation is involved, it appears that what the learned Judge did was in substantial compliance with the Oudh. case. So far as the first case is concerned the case before us can be distinguished in view of certain circumstances. Though the original pauper petition had not been signed and verified as required under Rule 3, the plaint annexed to it was signed and verified in the usual manner. It appears that the petitioner wanted the relevant portion of the plaint to be considered as a part of the petition.