Harisadhan Ghose vs De penning

P.N. Mookerjee, J.—The Petitioner before us applied before the court below for permission to sue as a pauper. The opposite parties were the Defendants in the intended pauper suit, which appears to have been directed against the Petitioner''s alleged wrongful discharge or dismissal from service under the said Defendants opposite parties or more accurately, under the firm Defendant opposite party No. 1, of which Defendants opposite parties Nos. 2 and 3 are partners or proprietors.

The Petitioner''s application was opposed, by the opposite parties, on whom notices were served under Rule 6 of Order XXXIII of the Code of Civil Procedure.

The learned trial Judge found that the Petitioner was a pauper but lie rejected his aforesaid application upon the other finding that, in view of an alleged award under the Industrial Disputes Act, purporting to hold, inter alia, that the Petitioner''s above dismissal was justified, the Petitioner, in his present application, could not be said to have had any cause of action for his aforesaid intended suit. The application appears to have been rejected under Order XXXIII, Rule 7(2) of the Code, read with Rule 5(d) of the said Order. Against this order of rejection the present rule was obtained by the Petitioner.

The only point which arises for consideration in this rule is, whether, in the facts and circumstances of this case, the learned Trial Judge was right, in law, in entering, at this stage, when he was considering the case under Rule 7(2) of Order XXXIII of the Code, into the above question, namely, as to the effect of the aforesaid award, and in holding that by reason thereof, the petitioner''s intended suit was barred and the Civil Court had no jurisdiction in the matter, or in other words, that the Petitioner had no cause of action for his said suit within the meaning of Order XXXIII, Rule 5(d) of the Code of Civil Procedure. The point, indeed, is of some difficulty and there is, or at any rate, was, in the past, acute divergence of judicial opinion as to the scope of a hearing under Order XXXIII, Rule 7(2) and as to the court''s power or jurisdiction at that stage, that is, at the stage of the pauper application, and it was held, in some cases, that, although, even at the aforesaid Rule 7(2) stage, the Court may, in addition to the question of the Petitioner''s pauperism, which has to be fully investigated and finally decided before any order is made under Rule 7(3) determine also the matters, mentioned in Rule 5 it can do so only on the allegations, contained in the Petitioner''s pauper application, and the evidence, if any, on the question of his pauperism, while, in some others, the evidence, not only on the question of the Petitioner''s pauperism but also on the merits of his claim and that, again, not only of the Petitioner but also of the opposite party, if any, was held relevant and open for consideration, even at that stage, for decision of any of the matters mentioned in Rule 5. In some others, again, an intermediate position was sought to be taken by limiting the consideration, at that stage or for the purpose of deciding the pauper application, to the Petitioner''s allegations in his pauper application and the evidence on record, both pro and con, as to his pauperism, and the evidence, if any of the Petitioner, but of the Petitioner alone, upon the merits is, including the points, mentioned in Rule 5, and, in some of those decisions, some broad expressions have been used at certain places, which may well let in the Petitioner''s evidence, if any, on the merits, as aforesaid, even at the time of the examination under Rule 7(1) read with Rule 6. As a matter of fact, in some of the reported cases, this latter view has been expressly taken.

The point now is which of the aforesaid views is correct and in accordance with law, having regard to the several provisions, contained in Order XXXIII and having regard, particularly, to the scheme and structure of the said order and its different provisions.

In our view, a reading of the order (Order 33) itself is enough to show that the purpose of the enquiry, at this particular stage, is only to see, so far as Rule 5 is concerned, whether the Petitioner has any prima facie case in his favour. The Code provides that, after the Petitioner''s application, the court has a right to examine the Petitioner, even on the merits, under Rule 4. That Rule 4 is followed by Rule 5, and, if on the materials before the court, appearing on the Petitioner''s application or his allegations, contained therein, and his examination, if any, by the Court under Rule 4, any of the objections under Rule 5 be found to be a bar to the Petitioner''s application the court has every right and enough jurisdiction to reject the same. If, however, the court, at that stage, be of a different opinion, that is, that the Petitioner''s application was not liable to be thrown out in limine, as aforesaid notice has to be given to the opposite party under Rule 6 of the order and the court may or has to take evidence from both parties under Rule 7(1) read with Rule 6, but only on the question of the Petitioner''s pauperism, or, as the particular rule (Rule 6), in terms, provides, in proof of the Petitioner''s pauperism and in disproof thereof. This evidence, therefore under Rule 7(1) of the order, must he limited only to the question of the Petitioner''s pauperism. Rule 7(2) then provides that, on the allegations, contained in the Petitioner''s application, and on the evidence before the court, as aforesaid, the court is entitled, at this stage, to consider not only the question of the Petitioner''s pauperism but also the several objection enumerated in Rule 5. It is to be remembered, however, as already sufficiently stressed, that the evidence at this stage must be the evidence, taken by the Court, under Rule 4, and the evidence, adduced under Rule 7(1) read with Rule 6, and, under this latter rule, the evidence must be confined, as the terms of the rule itself suggest, to the question of the Petitioner''s pauperism.

In the circumstances, evidence as to any question other than the Petitioner''s pauperism, adduced or allowed to be adduced at the Rule 7 stage, must be rejected as wholly improper evidence.

It is to be remembered, further, that the purpose of the enquiry under Order XXXIII of the code is to ascertain whether the Petitioner is a pauper and whether he has a prima facie claim to require investigation in his proposed or intended pauper suit. The merits of the case or the merits of the Petitioner''s claim are intended to be gone into only at the suit stage that is, after the suit is registered. Whatever enquiry is to be directed at the pauper application stage, must be confined to matters, arising on the face of the record, that is, the record, containing proper materials. Any consideration again of difficult, complicated or doubtful question of law is not really germane, pertinent or relevant at that stage.

This view will be amply supported by at least three reported decisions, one of this Court in the case of Parameswar Singh v. The New Theatres Limited (1937) 41 C.W.N. 1087, another a Full Bench decision of the Rangoon High Court in the case of U. Ba Dwe v. Maung Lu Pan, and Leong Ah Foon v. Leong Ah Choy ILR (1932) Rang. 857, and the third, a recent decision of the Allahabad High Court in the case of Baba Pawan Das and Another Vs. Uttar Pradesh Government, . 415 (See also Sm. Kamani Devi @ Sakuntala Devi Vs. Sir Kameshwar Singh of Darbhanga, ). The same view is also to be found in the latest decision of the Madras High Court in re. K. Annamalai Chettiar AIR (1956) Mad. 677, although, there are observations in that judgment to the effect that the evidence on the points, mentioned in Rule 5, may also be given at the Rule 7 stage, but that is because, in Madras, the connected rule (Rule 6) has been suitably amended for permitting or admitting such evidence even or also at that stage.

In the above circumstances, we are bound to hold that, in the present case, the learned trial Judge was not justified in relying upon the Petitioner''s evidence, be it admission or otherwise, as to the award under the Industrial Disputes Act, in his cross-examination at the Rule 7(1) stage and, moreover, the question of the effect of an Industrial Award on the Petitioner''s right of suit in the Civil Court is, to say the least, too complicated a question, and, certainly not, free from doubt or difficulty, to be taken up for consideration and finally decided at that stage. That is a matter which may very properly be raised as a preliminary issue in the suit itself after the Defendants have filed their written statement. In the above view, we would not say anything on the merits of the said question or contention but we would only draw the attention of the court below to Section 19 of the Industrial Disputes Act and the decision of this Court in D.P. Dunderdele and Others Vs. G.P. Mukherjee and Another, where the decision of the Supreme Court in Burn and Co., Calcutta Vs. Their Employees, , came up for some consideration, to impress upon it the inherent complexities of the point involved and the need of patient and careful consideration. It is to be noted further, that, if the view of the learned trial court be correct, the court may have to decide upon the effect of a document without properly having the same before it, as it has actually happened in this case, the award in question not being, either in law or in fact, in the records before the court. That, certainly, is not a practice, which is either sound or desirable or which can be encouraged or supported, and it is, plainly, not contemplated by the Rules under the relevant Order XXXIII of the code of Civil Procedure.

In course of the arguments both Mr. Meyer and Mr. Grhosej who appeared on behalf of the opposite parties in this rule, strongly relied upon the decision of this Court in the case of Jogendra Narayan Ray v. Durga Charan Guha Thakurta ILR (1918) Cal. 651, which may, at first sight, support their specific contention that, at the Rule 7(2) stage, the court is entitled to rely upon the Petitioner''s statement, if any, on the points, enumerated in Rule 5, even if that statement was elicited in cross-examination at the Rule 7(1) stage. The above decision relies, in its turn, upon an earlier judgment of this Court, delivered by Sir Ashutosh Mookerjee, sitting with Sharfuddin, J., in the case of Nawab Bahadur of Murshidabad v. Harish Chandra Acharjee (1910) 13 C.L.J. 593, which also may appear at first sight, to express the same view and the learned Advocates contended that, under the above two decisions, or, at least, under the later of them, namely, (3) supra, the learned trial court was entitled when hearing the pauper application under Rule 7(2) to rely upon the Petitioners'' evidence on the merits, whether it was given at the Rule 4 stage or at the Rule 7(1) stage, for determination of the objections, enumerated in Rule 5.

On a careful examination of the above two decisions, however, it will be found that their Lordships clearly had in mind while making the observations, on which the learned Advocates for the opposite parties relied, the examination of the Petitioner by the Court at the Rule 4 stage.

This is perfectly clear from inter alia the concluding lines of the penultimate paragraph of the judgment in (1) supra, where their Lordships categorically stated as follows:

The evidence, however to be taken under Rule 7, is confined to for the evidence which may be adduced by the applicant in proof of his pauperism and any evidence which may be adduced in disproof thereof, as laid down in Rule 6.

and their discussion of the several decisions of the different High Courts as also their own subsequent decision in Sita Nath v. Radha Raman AIR (1919) Cal. 155 must be read in that light. See also in this connection the relevant observations of Page, C.J., in the Rangoon Full Bench Case (2) (supra).

It is to be noted also that 46 Cal. 651, supra, was decided in favour of the pauper applicant in spite of the said observations, and, in 12 C.L.J. 593 supra, no reliance was placed or was, deemed necessary to be placed upon the applicant''s evidence at all, as their Lordships rejected the pauper application solely on the allegations made therein, on which alone, the said application was found to contravene Rule 5 of the order and fall within its mischief.

In the above circumstances, we are unable to hold that the aforesaid two decisions support the above contention of the learned Advocates of the opposite parties or lay down anything contrary to what we have held above to be the law, applicable to cases of the present type.

We would, accordingly, in view of the learned trial Judge''s finding on the question of the Petitioner''s pauperism in his (Petitioner''s) favour, make this Rule absolute, set aside the order of the said learned Judge and direct him to register the suit in forma pauperis, if otherwise in form and in accordance with law. On the suit being so registered, the opposite parties will have the right and liberty to file their written statement and to raise, inter alia, the above defence that the present suit is barred by reason of the aforesaid award under the Industrial Disputes Act and, if so advised, to have the said question tried and decided by the court as a preliminary issue, and, if and when such an issue is raised, the trial court will consider the same on the merits in accordance with law, unfettered and uninfluenced by any observation, made in this judgment.

Costs of this rule will abide the final result of the suit.

Niyogi, J.

I agree.