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1999 Supreme(All) 1405
IN THE HIGH COURT OF ALLAHABAD
D. K. Seth, J.
HARI KISHAN GUPTA AND OTHERS - Appellant
Versus
CIVIL JUDGE, KANNAUJ AND OTHERS - Respondents
C. M. W. P. 38561 Of 1999
Decided On : 09/13/1999
Ajay Sahai, Rajeshwari Sahai
The scope of enquiry under Order XXXIII of the Code of Civil Procedure is confined to the question whether the applicant is an indigent person and whether the application is hit by any of the mischief contained in clauses (a) to (g) of Rule 5. The court cannot go beyond the same.
Headnote:
CIVIL PROCEDURE CODE - ORDER XXXIII - SUIT IN FORMA PAUPERIS - JURISDICTION - GUARDIANSHIP OF MINOR - APPOINTMENT OF HANDWRITING EXPERT - SCOPE OF ENQUIRY.
Fact of the Case:
The plaintiff applied for permission to sue as a pauper in a partition suit against the defendants. The defendants objected to the application and filed an affidavit in support of their objection. The plaintiff also filed an application for the appointment of a handwriting expert to prove the alleged signature on a document acknowledging the return of ornaments and other valuable properties. The trial court rejected the application for the appointment of a handwriting expert and also rejected the defendants' application for time to adduce evidence on their objection. The plaintiff filed a revision petition against the order rejecting the application for the appointment of a handwriting expert, which was dismissed by the District Judge. The plaintiff then filed a writ petition challenging the orders of the trial court and the District Judge.
Finding of the Court:
The court held that the question of jurisdiction could not be raised at the stage of an application for permission to sue as a pauper. The court also held that the question of guardianship of the minor plaintiff could not be gone into at that stage, as the mother of the minor was the natural guardian and there was no provision that remarriage would disqualify her from continuing as guardian. The court further held that the refusal to appoint a handwriting expert did not entitle the defendants to challenge the grant of permission to sue as a pauper, as the payment of court fees was a matter between the State and the plaintiff. The court also held that the trial court had rightly rejected the defendants' application for time to adduce evidence on their objection, as they had been attempting to delay the proceedings by various means and methods.
Issues: 1. Whether the question of jurisdiction could be raised at the stage of an application for permission to sue as a pauper? 2. Whether the question of guardianship of the minor plaintiff could be gone into at that stage? 3. Whether the refusal to appoint a handwriting expert entitled the defendants to challenge the grant of permission to sue as a pauper? 4. Whether the trial court had rightly rejected the defendants' application for time to adduce evidence on their objection?
Ratio Decidendi: 1. The scope of enquiry under Order XXXIII of the Code of Civil Procedure is confined to the question whether the applicant is an indigent person and whether the application is hit by any of the mischief contained in clauses (a) to (g) of Rule 5. The court cannot go beyond the same. 2. The question of guardianship of a minor cannot be gone into at the stage of an application for permission to sue as a pauper, as the mother of the minor is the natural guardian and there is no provision that remarriage would disqualify her from continuing as guardian. 3. The refusal to appoint a handwriting expert does not entitle the defendants to challenge the grant of permission to sue as a pauper, as the payment of court fees is a matter between the State and the plaintiff. 4. The trial court had rightly rejected the defendants' application for time to adduce evidence on their objection, as they had been attempting to delay the proceedings by various means and methods.
Final Decision: The writ petition was dismissed.
( 1 ) THE plaintiff-opposite party had applied for Institution of a suit for partition against the petitioner-defendants in forma pauperis. The defendants had filed objection to the application under Order XXXIII, Rule 1 filed by the plaintiff and had filed affidavit in support of their objection as well as different documents. On the question of permission to be granted to sue as pauper to the plaintiff, the parties had addressed in the Court and hearing is over. At that stage, an application was filed for appointment of a handwriting expert to prove the alleged signature on a document alleged to be a receipt signed by the plaintiff acknowledging return of all ornaments and other valuable properties. The said application was rejected by an order dated 3rd february, 1999 passed by the learned Civil Judge, Kannauj in O. S. No. 170 of 1996 in which the plaintiff had sought for partition. By an application filed on 28th April, 1999, the defendants had prayed for time to adduce evidence on the application under Order XXXIII, Rule 1. The said application was rejected by an order dated 28th April, 1999 on the ground that all documents have been placed and evidences have been adduced and that argument on behalf of the defendant was also over. Against the order dated 28th April, 1999 Civil Revision No. of 1999 was preferred. The said civil revision was dismissed by an order dated 10th August. 1999 passed by the learned District Judge. Kannauj. These orders had since been challenged in this writ petition.
( 2 ) MR. Rajeshwari Sahai, learned counsel for the petitioner had assailed the said two orders on the ground that the suit was valued above one lakh rupees and, therefore, the suit could not be maintained before the Civil Judge, senior division who had jurisdiction upto one lakh rupees. In support he relies on the finding in the order dated 10th August, 1999 passed in revision, wherein it was held that the value of the suit being above one lakh rupees, revision did not lie before the learned District Judge. Therefore, the order dated 3rd February, 1999 and 28th April, 1999 passed by the learned Civil Judge. Senior Division cannot be sustained. He then contends that the plaintiff No. 1 sought to represent the interest of her son plaintiff No. 2 a minor in the suit. But since the plaintiff, who is widow, is about to remarry someone else, therefore, she cannot be the guardian of her minor son. The Court ought to have appointed the grandfather as guardian of the minor. Therefore, the matter cannot be proceeded without appointing a guardian of the minor and as such, the order dated 3rd February, 1999 and 20th April, 1999 passed by the learned Civil judge, Senior Division, Kannauj cannot be sustained. He further contends that since the signature of the plaintiff on the alleged receipt acknowledging receipt of her ornaments having been denied, the same could be decided only by means of an opinion of Hand Writing Expert and as such, the order refusing appointment of Hand Writing Expert is wholly illegal and arbitrary. The refusal to grant an opportunity to adduce evidence is also equally arbitrary and illegal. He contends that in order to prove that the petitioner Is not a pauper and she has sufficient means to pay the court-fees and she does not come within the scope and ambit of order XXXIII Rule 1, such an expert was necessary to be appointed to find out as to whether petitioner had sufficient means. Therefore, the order cannot be sustained. On these grounds, he had assailed the impugned orders before this Court,
( 3 ) I have heard Mr. Sahai at length.
( 4 ) THE question of jurisdiction can be raised at any point of time before settlement of the issues. The issues are yet to be settled, after the suit is registered. The question of jurisdiction cannot be gone into within the scope and ambit of Order XXXIII, Rule 1 of the Code of Civil Procedure. The entire Order XXXIII of the Code is confined within the finding as to whether
