Fatma Bai vs D.R. Umrigar

Macleod, J.—The applicant presented this application to the Prothonotary under Order XXXIII of the CPC for leave to sue as a pauper. Under Rule 2 her application was bound to contain all the particulars required in regard to plaints in suits, and was therefore bound to show a cause of action. Under Rule 5, the Court shall reject an application for permission to sue as a pauper inter alia when the applicant is not a pauper or when his allegations do not show a cause of action.

The proposed suit was to set aside a sale to the second respondent effected by the first respondent as mortgagee. The applicant as the mortgagor alleged that the mortgagee had not properly advertised the sale and had acted in collusion with the purchaser. The first respondent admitted that there was a surplus due to the applicant after the amount due on the mortgage had been satisfied and paid into Court Rs. 101. He then contended (1) that the application disclosed no cause of action; and (2) that the applicant being entitled to the sum of Rs. 101 paid into the Court, was not a pauper. 3. The Prothonotary rejected the application on the ground that the applicant was entitled to Rs. 101, following the decision in Dwarkanath v. Madhavrao I L R (1886) 10 Bom. 207. 4. The applicant then applied under rule 82 of the High Court Rules for the matter to be adjourned to the Judge in Chambers and it came on for argument before me. 5. With all due respect to the learned Judge who decided the case of Dwarkanath v. Madhavrao I L R (1886) 10 Bom. 207, I am of opinion that his decision should not be followed; otherwise, whenever an application for permission to sue as pauper is made the respondent can always get the application rejected by paying into Court Rs. too out of the amount claimed. 6. In construing an explanation to a section or rule it is necessary to refer to the section or rule itself. No doubt, in Rule 5 (e) reference is made to the "proposed " suit, whereas, in the explanation to the word " proposed " has not been inserted. It is also clear that at the time an application is presented there is no suit in existence. But the only suit that can be referred to in the explanation to Rule 1 is the suit which may be instituted under the rule, and to put any other interpretation on the term " the suit" would make it meaningless. The words "such suit" in the first part of the explanation clearly refer to the suit which may be instituted by a pauper as soon as his application to sue as a pauper has been accepted. As a matter of drafting, it was not necessary to use the word " such" a second time. There was, therefore, no necessity to use the word " proposed" in the explanation, though it was necessary in Rule 5 (e). However, on the first ground which was not decided by the Prothonotary, I think the application must be rejected as the allegations contained therein do not show a cause of action. But the rejection will be without prejudice to the applicant's right to make another application which does show a cause of action. She must, however, as a condition precedent, pay the respondents'' costs of opposing this application. 7. Attorneys for the petitioner.: Jehangir, Mehta and Shomji. 8. Attorneys for the respondents: Mulla and Mulla.