@JUDGMENTTAG-ORDER
1. This is an application by the plaintiff Anoop Chand for leave to file a first appeal in forma pauperis against the judgment and decree of the Civil Judge, Jaipur City dated 30-4-1952. The applicant''s suit in the trial Court was that the defendant Ram Das had borrowed from him Rs. 6,000/- and agreed to mortgage his property and execute a mortgage deed. It was alleged that the defendant had failed to keep his promise and therefore, it was prayed that either a decree for the specific performance of the contract relating to the execution of the mortgage deed be passed against the defendant or, in the alternative a decree for Rs. 6,000/- with interest at the rate of 12 per cent P.A. with costs be given against him.
2. The defendant Ram Das traversed the suit saying that he did not sign the agreement dated 12-2-1948 put forward by the plaintiff, that his signatures were obtained only on a blank paper by coercion and that he had not obtained any loan from the plaintiff. The trial Court found the case in favour of the defendant and dismissed the plaintiff''s suit. The plaintiff, therefore, wants to prefer an appeal to this Court. In the trial Court he had paid the court-fees but now he says that whatever money he had in his possession he had lent it to the defendant, that he could not pay even the costs of the decree of the trial Court, that the defendant, therefore, got his belongings attached and now he is not left with anything except some clothes and utensils worth about Rs. 50/-.
3. The defendant-opposite party has challenged the application saying that the petitioner is not a pauper. Learned advocate for the opposite party has further raised the following two preliminary objections.
1. Firstly that the application for leave to appeal in forma pauperis has not been verified according to O. 6, R. 15, Civil P.C. and, therefore, it should be rejected under O. 44, R. 1 read with O. 33, R. 5, Civil P.C. and
2. Secondly that the decree is not contrary to law or some usage having the force of law, nor is it otherwise erroneous or unjust.
4. Regarding the first objection, it has been pointed out by the learned advocate for the opposite party that although the application bears the verification, the applicant has vaguely stated that he "endorses on oath that the application is true to his knowledge and belief.
5. It is urged that according to O. 6, R. 15, Civil P.C., the applicant ought to have stated as to which paragraph of the application he verified of his own knowledge and which paragraph he verified by information received from others and. believed to be true and that since the verification was not in the proper manner this Court had no option but. to reject the application under O. 44, R. 1 read with O. 33, R. 5, Civil P.C. The applicant''s learned advocate has not been able to justify the propriety of the verification strictly according to law as provided under O. 6. R. 15, Civil P.C., but he says that this is after all a technical error and that since his client is prepared to correct it immediately, the application should not be rejected and he should be permitted to make the necessary amendment.
6. Learned advocate for the opposite party contends that the provisions of O. 33, R. 5. Civil P.C., are mandatory and no such permission for amendment can be allowed under the law. In support of his arguments, he has referred to the case of - ''Narsiah v. Vithalingam Thingandas'', 16 Ind Cas 83 (LB) (A). In that case the District Judge had rejected the plaintiff''s application for permission to sue as a pauper on account of the defective verification thereof. On the plaintiff''s application in revision in the Lower Burma Chief Court, it was held that
Order 33, Rule 5, Civil P.C. leaves no option in such a case and the Court is bound to reject the application.
7. In another case of - ''Pe Kye Maung v. Shwe Zin'', AIR 1929 Rang 128 (2) (B), a similar, view was expressed by Maung Ba, Judge to the effect that
Rule 5, O. 33 leaves the Court no discretion but to reject the application.
This view was, however, expressed in a case where the applicant who wanted to file a suit in forma pauperis had not calculated the court-fee value in accordance with S. 7 of the Court-fees Act.
8. It appears from a later case of the same High Court that although the said two decisions were not overruled, yet the view expressed in the second case, which is the same as in the first one, was changed on the basis of an amendment which was made in O. 33 of the Civil P. C. In the case of - ''M.H. Mashiah v. Balthazar & Son Ltd.'', AIR 1936 Rang 279 (C), the District Judge had rejected a pauper application under O. 33, R. 5, Civil P.C. on the ground that according to O. 6, R. 15, C.P.C., it did not state the date on which the verification was made. The District Judge had referred to the case of AIR 1929 Rang 128 (2) (B), in support of his decision. On a revision application by the plaintiff to the Rangoon High Court, it was held by a Division Bench that in view of the amendment of O. 33 by that Court in the year, 1935, the case referred above was no longer the law and that the Court had jurisdiction to allow an amendment of the petition. The judgment does not disclose in what manner the amendment of O. 33 was made but it is apparent that the view taken in AIR 1929 Rang 128 (2) (B), was considered to be harsh or unreasonable and therefore some change was made in the order itself. It may be pointed out here that in none of these cases Ss. 151 and 153, Civil P.C. which respectively deal with the inherent powers and general powers of the Courts for allowing amendments, came up for discission. Adverting to these two sections, the learned Judges of the Allahabad High Court have held that the Court can allow amendment of the verification in an application for leave to sue in forma pauperis. In the case of -
It is a matter of history now that there was a time when suits were dismissed and plaints were rejected because the plaints were not property verified. Section 153 says not only that the Court may at any time amend any defect or error in any proceeding in a suit, but it further emphasizes the duty of the Court by saying that
all necessary amendments shall be made for the purpose of determining the real question of issue raised by or depending on such proceeding.
It was further observed that
There can be no doubt that O. 33, R. 5 empowers a Court to eject an application for permission to sue as a pauper if it is not properly framed as directed therein; but this can only mean that up amendments were possible and the defects could not be rectified for some reason or other. In our opinion, it was the duty of the Court when it found that a defect in verification was there, to offer a chance to the applicant to correct the verification. If that chance was not availed of, it was certainly open to the Court to reject the application.
9. Then adverting to S. 151 of the Civil P.C. it was observed that
Will it not be an abuse of the process of the Court, if the applicant is called upon to make a fresh application for permission to sue as a pauper simply because his first application was badly verified. We want to lay emphasis on the feature that our decision has not been arrived at simply because we consider that there are hard cases but because we consider that the object for which the Courts exist, namely, doing justice has not been kept in view by the orders in question.
10. In another case of - ''
Where an Application filed for permission to sue as a pauper was defective in form such as that certain clauses were not verified and that it was not in the form of a plaint, and the period of limitation for the suit has expired since the filing of the application, the Court instead of passing an order dismissing the application should allow its amendment.
11. The learned Judges of the Lahore High Court also have taken a similar view. In the case of - ''Ashraf Ali v. Rameshwar Nath'', AIR 1923 Lah 684 (F) the decision of the Burma High Court in ''Narsiah v. Vithalingam Thingandas (A)'', was pointedly referred but it was not followed on the ground that the view taken therein was very narrow.
12. In the case of -
It is true that under O. 33, R. 5, the Court is bound to reject an application which is not framed and presented in the manner prescribed by Rr. 2 and 3, but from this it does not follow that R. 2 is to be meticulously interpreted against the petitioner. After all the Code is not designed as a trap which a litigant must try to avoid by all means in his power but is designed to enable the Court to ascertain the real points in issue between the parties and come to a speedy and clear determination of those points.
13. The same line of reasoning has been adopted by the learned Judges of the Nagpur High Court as well. In the case of - ''Baliram Shukul v. Mt. Sitabai Shukul'', AIR 1935 Nag 168 (H), it was held that
Only such defects of form as unfavourably reflect on the merits of the application must be regarded as justifying an order refusing to allow the applicant to sue as a pauper. Where an application is defective in form by the list of property not being duly verified, the lack of verification might be due to the carelessness or ignorance, or might be deliberate. Whether the formal defect was unintentional or designed could be detected only by giving the applicant an opportunity to regularise the list of property by appending the required verification. If he made the amendment, the formal defect would have been cared, but if he fails to amend, his failure could be considered as cogent evidence of his having with held in formation regarding his resources.
14. Again in the case of -
It was the duty of the Court to allow the applicant a chance to correct the defect in the verification before rejecting the application itself.
15. In the present case also, the defective verification seems to have been made more because of carelessness or inadvertence than due to some deliberate attempt to evade any responsibility arising out of it. Section 151, Civil P.C. clearly lays down that
"nothing in this Code should be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." Section 153 further gives general powers to the Court to amend any defect or error in any proceeding in a suit. It further enjoins upon the Courts a duty that all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
16. To my mind O. 33, R. 5, Civil P.C. does not take away the inherent powers of the Courts under S. 151 or their general power to allow amendment under S. 153, Civil P.C. What O. 33, R. 5, Civil P.C. seems to lay down is that the Courts should be strict in observing the rules about the frame and presentation of applications, etc. as provided in Rr. 2 and 3 of that Order. This rule should be interpreted subject to the provisions laid down under Ss. 151 and 153, Civil P.C. This would mean that the Courts may give and they should give the applicant a chance to amend formal or mere technical defects but if the application is incapable of amendment or if the applicant fails to make proper amendment and persists in committing mistakes in spite of a chance being given to him, then the Court should not condone or take a light view of the defects but it must reject the application.
17. In the present case, the applicant has vaguely verified the application saying that it was true to his knowledge and belief. It is doubtful if the (sic) between knowledge or belief was clearly understood by him at that time. The defect may be due to ignorance or carelessness or inadvertence but it is no doubt a very formal and technical defect and all that the applicant is required to do in this connection is to say separately with reference to different paragraphs as to which of them he verifies from his own knowledge and which on the information received from other particular persons or sources. The defect does not seem to arise because of the applicant''s deliberate attempt to avoid his responsibility nor the cure of this defect is likely to prejudice the case of the opposite party in any way. Under the circumstances it seems just and proper that the applicant should be permitted to make necessary amendment in verification according to law. The applicant''s prayer to correct the verification according to law is allowed and the opposite party''s first preliminary objection is, therefore, dismissed.
18. As regards the second objection, the second issue in the case which has been decided against the plaintiff and on account of which his suit has been dismissed was framed in the following language:
Whether this document dated 12-2-48 had been executed by defendant in plaintiff''s favour, after having received Rs. 6,000/- and whether this is binding on the defendant or whether it had been got executed forcibly under undue influence.
19. It shows that there was some confusion in the mind of the trial Court regarding the burden of proof on the parties. The applicant''s learned advocate has further pointed out that the trial Court disbelieved the plaintiff''s witnesses because they could not identify the photograph of the defendant Ram Das out of the ten photos produced on behalf of his legal representatives. It is urged that the defendant has not proved in the first instance that if in any of those photos Ram Das was actually present. It would not be proper to discuss these points here in the absence of the record of the trial Court before us. It would suffice here to say that the trial court has not discussed certain matters in the judgment properly and it cannot be said at present that the judgment is without any error. The second objection, therefore, also fails.
20. The applicant is given an opportunity to amend the verification of his application in accordance with law within a week of the pronouncement of this order. If it is done, the application be sent to the Civil Judge, Jaipur City with direction to make enquiries into the pauperism of the applicant and send his report within two months.
