1987 Supreme(MP) 546

IN THE HIGH COURT OF MADHYA PRADESH
T.N. SINGH, J.
Dwarika Prasad - Appellant
Versus
Damodar Das - Respondent
M.A. No. 112 of 1986 (G)
Decided On : 20-02-1987

Headnote:(1) Civil Procedure Code, 1908 – O. 33, R. 1, 2 and 3 – application to sue as indigent person – plaint need not be filed along with application.

       (2) Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – repeated applications for temporary injunction – – not barred if new facts are pleaded.

       (3) Civil Procedure Code, 1908 – O. 40, R. 1 – applicalion for appointment of receiver – can be filed repeatedly on fresh facts.

        Short Note

       1. Two matters are taken being an analogous for hearing today, but the maid decision has to be rendered in the appeal challenging the validity of the order passed on appellant’s application under rule 2 of Order 33, C.P.C claiming the right to continue with the suit pending in that Court as an indigent person.

       Held: What is seriously contested by Shri N.K. Jain is appellant's entitlement to continue or prosecute the pending suit as an indigent person and he has relied on the provisions of Rules 1, 2 & 3 of Order 33, C.P.C. to support his contention. True it is, that in rule 1 the provision is to the effect that "any suit may be instituted by an indigent person". It is also true that rule 2 prescribes the content of the application made for permission to sue as an indigent person"• while rule 3 does so for "presentation of the application". However, what appears clear to me is that the institution of a suit need not necessary follow presentation of an application for permission to sue and presentation of such an application may follow it. Indeed, there is no provision in Order 33, which bars and application by an indigent person unless be had filed with his application the plaint to institute the suit. On the other band, the entire gamut of the provisions contained in Order 33 rather deal with the procedure of determination of a person's right to sue as an indigent person and for that purpose to deal with and dispose of his application made to enforce that right. Neither rule 2 contemplates that a plaintiff must accompany or follow such an application, nor rule 5 of Order 33, indicates that such an application can be rejected for any defect in the plaint or for presenting the plaint earlier and not with the application. When a Court is seized of an application for "permission" to sue as an indigent made under rule 2 of Order 33, it is bound to decide the question of indigence of that person and the right of that person "to sue as an indigent person". If a suit has already been instituted evidently it will be available to him to prosecute that suit as an indigent person when he so determined because he will in such circumstances be only exercising his right to sue albeil an indigent person. I do not see any difference in so far as right to sue is concerned between the two positions as to "institute" a suit to enforce the right to sue and to continue" a suit to enforce the same right. The Court seized of the matter under Order 33, is bound to follow the provisions thereof, and if the application made under rule 2 has to be rejected it can only be rejected on the grounds mentioned in rule 5 thereof.

       2. Appellant’s learned counsel Shri R.C. Lahoti has, however, laboured much to cite authorities to support his contention that the plea of Jaw taken by Shri N.K. Jain is not sustainable. The decisions cited by him are AIR 1936 Calcutta 221 (Md. Fateh Nasib v. Saradindu Mukherjee), (2) AIR 1936 Madras 158 (Neelikandi Moidin v. Kunhavissa & Others) (3) AIR 1969 Patna 267 (Makundi Mandal & Others v. Hari das & Others), and (4) AIR 1955 Mysore 128 (M. C. Chikkamanjundanna v. D. N. . Pillanna & Others), which according to Shri N. K Jain are distinguishable on facts. However, I do not proceed to examine rival contentions as to applicability in those decisions to the question before me, because I have taken a view independently of those decisions that Shri Jain's contention is merit leS. Nothing more. therefore, need be said on the decisions cited.

       3. For all the foregoing reasons this appeal must succeed and it is allowed. The order passed by the Court below is set – aside. The application of the appellant shall be decided on merits in accordance with law.

       4. In so far as the connected matter is concerned, I have no hesitation to agree with all what has been submitted by Shri Jain. Counsel is right that repeated applications for appointment of a receiver or for temporary injunction are not barred in law. and if fresh facts are pleaded. the Court may reconsider the• prayers made in that regard. AIR 1936 Cal. 221, AIR 1930 Mad. 158. AIR 1969 Pat. 267 and AIR 1955 Mys. 128 referred to. Appeal allowed. Revision disposed of.