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Judgment
Mockett, J.—This is a civil revision petition against an order of the Additional Subordinate Judge of Ellore rejecting the petition of the 6th
defendant praying that the plaintiff may be dispaupered. Order XXXIII, Rule 9, Civil Procedure Code, gives a discretion to the Court to dispauper
a plaintiff, (a) if he is guilty of vexatious or improper conduct in the course of the suit, (b) if it appears that his means are such that he ought not to
continue to sue as a pauper or (c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other
person has obtained an interest in such subject-matter. It was argued in lower Court that as the plaintiff had admittedly, after he was given leave to
sue in forma pauperis executed a mortgage over the properties affected by the suit, the court should dispauper him under Order XXXIII, Rule 9,
(c), Civil Procedure Code. Two points of view have been argued before me. Mr. Lakshmana has argued that any agreement affecting the subject-
matter of the suit will be sufficient to enable the Court to act under Order XXXIII, Rule 9. (c). Mr. P. Somasundaram has contended that such an
agreement should be a champertous agreement and this I gather is the basis of the lower Court''s order. Mr. Somasundaram''s argument is
supported by the decision in Abdul Jabbar Talukdar Vs. Sanu Bibi, to this extent that a Bench of the Calcutta High Court there held that Order
XXXIII, Rule 5 (e), refers to a champertous agreement. The learned Judges in that case rely on Bai Chandaba v. Kuver Saheb 18 B 464 in which
the Bombay High Court expresses the same view. Mr. Lakshmanna relies on Edulji Cowasji v. Diha Bhoy 21 Ind. Cas. 537 where the Assistant
Judicial Commissioner of Sind holds that there is no limitation by words in Order XXXIII, Rule 9. Manohar Ramchandra v. Lakshman Mahadev 9
B 371 by implication is in line with the Sind case. The authorities are therefore far from unanimous and no Madras ruling has been cited. It seems
to me that Order XXXIII, Rule 9 (c), need not necessarily refer to a champertous agreement. The wording of the rule is unqualified and it would
seem that it clearly removes from the pauper category suits in which other persons are interested in the subject-matter, the notion, I think, being
that such persons might pay the necessary court-fees. I do not see why such persons need be champertous at all. There is no reason for
introducing qualifying words into the rule which seems to be clear enough us it is. My construction of Order XXXIII, Rule 9, (e) is that a person
cannot sue as a pauper if at the time of the petition some other person has under an agreement an interest in the subject-matter. I think it must be a
subsisting interest at the time of the suit otherwise as has been pointed out in argument the subject-matter of suits which long ago had been
concerned in agreements no longer in force would be affected which I do not think is the intention of the rule. As I have already said, when there is
another person at the time of the suit interested, the likelihood is that such a person would pay the court-fee. The authorities assist me to that
extent. In view of the above, the order of the lower Court should be set aside. But I think as there is a discretion in the Court under Order
XXXIII, Rule 9, that this matter should be sent back to the lower Court to be re-heard that is, it will be for the Court to decide whether in its
discretion the petitioner should be dispaupered or not. The petitioner will have his costs of this revision petition.