1. ' M.A. Sozer, the plaintiff, appearing in person presented plaint against M/s. (1) Yahya Ahmed Bawany, (2) Management of Jetpur Memon Relief Society and (3) Jetpur Memon Relief Society for recovery of damages without affixing any court-fees. He also filed an application for exemption from payment of court-fees. The plaint was rejected under Order VII, Rule 11, C.P.C. For non- payment of court-fee by order, dated 23-9-1990. He thereafter filed an application under Order XXXIII, Rule 2, C.P.C. For permission to sue in forma pauperis. Alongwith the application he filed copy of the plaint earlier presented by him against the abovenamed defendants.
2. ' The learned Additional Registrar by his order, dated 19-8-1992, .Granted the abovesaid application.
3. The defendants, being aggrieved by the aforesaid order of the learned Additional Registrar (O.S.), have, through their Advocate, filed the present petition under rule 15 of the Sindh Chief Court Rules (O.S.) for referring the matter to Court and this reference has been made accordingly.
4. ' I have heard the plaintiff and Mr. Baqar Hussain, learned Advocate for the defendants.
5. ' The plaintiff has raised preliminary objections with regard to maintainability of the petition on three-fold grounds, first being that the Jetpur Memon Relief Society, being a Society registered under Societies Registration Act (XXI of 1860) (hereinafter referred to as the 'said Act'), can sue or defend any case in the Court of law only through the Honorary General Secretary or any member of the Society duly authorised in this behalf. He has placed reliance on Bye-law 14 of the said Society which prescribes Functions and Powers of the Managing Committee of the Society. Clause
(f) thereof reads as under:--- "It can authorise the Honorary General Secretary or any member of the Society to sue or defend any case in the Court or Courts of law or in any arbitration and may withhold or revoke such powers."
6. ' He has also placed reliance on a copy of resolution passed by the Managing Committee of the said Society on 8-7-1989, whereby its Honorary General Secretary Mr. Adam A. Muchhada has been authorised to file a suit against the plaintiff and to sign and present plaint, engage Advocate and to do all necessary acts that may be required to be done in connection with the said case.
7. ' The present petition has been filed by Mr. Baqar Hussain, Advocate, under his signature, who has been engaged by defendant No,1; Yahya Ahmed Bawany and the aforesaid Honorary General Secretary, namely, Adam Abdul Karim Muchhada. The affidavit in support of the petition has been sworn by Shabbir Ahmed son of Ghulam Hussain, who is the Office Secretary of the Society.
8. ' The contention of the plaintiff, in the above background, to be precise, is that Mr. Baqar Hussain, Advocate has been engaged by the President and Honorary General Secretary who are not authorised by the Managing Committee, under its resolution, to defend the Society and the affidavit in support of the petition is filed by the Office Secretary, who has no locus standi to represent the Society. Consequently it is urged that the petition having been filed incompetently and without any authority from the Society cannot be considered and is liable to be dismissed.
9. ' Since the Society is registered under the aforesaid Act, for appreciation of the above submission, reference may be made to section 6 thereof which reads as under:--- "6. Every Society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion: ' Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant."
10. ' The following rules, so far as relevant in the context of the dispute in hand, are deductible from the above text:---
(1) On the plain reading of the above provisions it is clear that a Society can neither sue nor can be sued in its own name.
(2) It can sue or be sued only in the name of president, chairman, or principal officer, or trustees, as may be determined by the rules and regulations of the society.
(3) In case the rules are silent in this respect, the society is to sue or be sued as shall be resolved by the governing body for the occasion.
(4) The proviso lays down that it shall be competent to sue the president or the chairman or principal secretary or the trustees of the society, in case on application made to the governing body some other officer or person is not nominated to be the defendant.
11. ' The Bye-law referred to by the plaintiff, only enables the society in question with regard to authorising the Honorary General Secretary or any member of the society to sue or defend any case in the Court. It does not lay down per se that Honorary General Secretary or any member of the society can sue or defend suit filed by or against the society. The said Bye-law is, therefore, of no consequence.
12. ' As noted above, the plaintiff in the suit has filed the application under Order XXXIII, Rule 2, C.P.C.
13. Against Mr. Yahya 'Ahmed Bawany, the President of the Society. No description of the other defendants has been given in the said application.
14. ' If the copy of the earlier plaint filed along with the aforesaid application is to be taken to be a plaint, then also it is only the president who has been sued, having been arrayed as defendant No,1 therein. Defendant No,2 being the management of the society and defendant No,3, society itself, on proper construction of section 6 of the said Act cannot be joined as defendants, as the above provisions do not permit suing the society itself. In view of the above unambiguous provision, as stated above, there cannot two opinions on the proposition that a society cannot be itself joined as a arty.
15. ' In any case the plaintiff having chosen to sue the president, he cannot fake any advantage of the Bye-law referred to by him, in addition to the fact that under section 6 of the said Act the Society can sue and be sued in the name of the president also and the words any member of the Society would include the president of the Society. The plaintiff had not filed any application to the governing body for nomination of the defendant in the suit intended to be filed by him. The president under the circumstances being the defendant and aggrieved against the order passed by the Additional Registrar (O.S.), can competently maintain the petition under rule 15 of the Sindh Chief Court Rules (O.S.).
16. ' The petition under rule 15 of the aforesaid Rules is not a proceeding separate from the suit or independent of it. It is a step in the proceedings in the suit. The purport of the above rule is that in case a party is not satisfied with the order of the learned Registrar (O.S.), can request for placing them matter before the Court for orders, that is to say, for adjudication on the correctness of such order. The aforesaid rule is primarily designed to regulate the proceedings in the suit and does not create any independent right similar to appeal or revision like the provisions in the Civil Procedure Code. If it be construed otherwise, even then, it is established law that a party to the suit, as a matter of right, can assail any order affecting his rights in any manner, by way of appeal or revision or any other mode prescribed by law. In this view of the matter any person, who is a party in the suit and is not satisfied with the order passed by the learned Additional Registrar (O.S.), can make a request for placing the matter before the Court. It was not necessary at all for the president who was joined as a defendant by the plaintiff, to seek an authority by way of resolution from the governing body of the society, for filing the above petition. He being a party to the suit was competent to file the petition under consideration. The objection is, therefore, overruled.
17. ' It was next contended by the plaintiff that the petition was barred by time, as it was filed after expiry of 8 days from the date of passing of the said order. The delay in filing the petition has been explained by Mr. Yahya Ahmed Bawany, the President, in his petition filed under Rule 15 of the said Rules. It has been stated that after passing of the orders on 19-8-1992, the application was filed for certified copy of the order passed by the learned Additional Registrar (O.S.) but it was not supplied and was expected to be delivered on 7-9-1992. As it might had taken some time to obtain the certified copy, the application was filed reserving the right to urge further grounds, if necessary, after obtaining the certified copy. The above explanation from my point of view is sufficient cause to allow presentation of the petition after the expiry of the prescribed period of 8 days, as provided in the said rule itself. The above objection being without substance is rejected hereby.
18. Thirdly, it was contended that the affidavit in support of the petition has been filed by the Office Secretary of the Society, who had no locus standi. I find no force in the said objection as well. The application in question does not require any affidavit in support thereof. Under rule 74 of the Original Side Rules only applications are to be supported by affidavit, whereas in Rule 15, the framers of law have used the word 'petition' and not application. The word petition has been used with a purpose, in contradistinction to application used in rule 74 of the said rules. The objection is also overruled accordingly.
19. ' The learned Advocate for the respondents has assailed the order of the learned Additional Registrar (O.S.) on various grounds:---
(i) Application under Order XXXIII, Rule 2, C.P.C. Has to be a composite document and must meet all the requirements of Order VII, C.P.C. The application does not disclose all the particulars as required under Order VII of the Code, like names of the parties and their other particulars; and facts constituting the cause of action, valuation and prayer causes and is not verified as required under the law.
(ii) The application also does not disclose the schedule of properties belonging to the petitioner nor it is verified. He has relied on the case-law which shall be referred to at the relevant place.
20. ' Order XXXIII, Rule 1, C.P.C. Provides that subject to the provisions following the said rule, any suit may be instituted by a pauper. According to explanation thereto, a person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth Rs,1,000 other than his necessary wearing apparel and the subject-matter of the suit. Rule 2 of the said Order requires that every application for permission to sue as a pauper shall contain the particulars required in regard to the plaints in suit. Schedule of movable or immovable property belonging to the applicant, with estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
21. ' The application filed by the petitioner is bereft of all the particulars required in regard to the plaints in suit. All that it states is to allow the plaintiff to file suit as a pauper which is valued at Rs,5,00,000 and attracts court-fees of Rs,15,000 and that the earlier plaint was rejected for non- payment of court-fees. In so far as schedule of the movable and immovable properties is concerned, it states "assets which can be realised and converted into cash Rs,1,000".
22. ' The contention of the learned counsel, therefore, apparently has great force inasmuch as the application under Order XXXIII, Rule 2, C.P.C. Does not disclose the particulars required to be stated in the plaint, it does not meet the bare requirements of Order XXXIII, Rule 2, C.P.C. But it is noted that the plaintiff alongwith the said application, as stated in para. 3 thereof, has annexed the photostat copy of the plaint filed by him earlier. The intention of the plaintiff appears to be that the said plaint should be read as part of the said application.
23. ' No doubt the aforesaid copy of the plaint annexed to the application itself having not been signed and verified as required under Order VII of the Code, does not meet the requirements of the said order. However, it cannot be overlooked that because of the absence of the signature on the plaint or the verification of the plaint or such irregularities which are curable under the provisions of the Code, the plaintiff cannot be non-suited. The above is the established law. There is no reason for not applying the above principle to the proceedings under Order XXXIII of the Code. It is also settled law that the rules or procedure are prescribed to advance the cause of justice and not to entrap the unwary litigant, moreso, it being the requirement of Rule 3 of the said Order that such application is to be presented to the Court by the applicant in person. Under the circumstances I would take the photostat copy of the plaint to be the plaint under Order XXXIII.
24. ' The learned Advocate for the defendants relying on the case of Habibullah v. All Muhammad PLD 1986 Quetta 135 contended that an application under Order XXXIII has to be a composite document and a copy of the plaint attached with the application cannot be read as a plaint. In my humble view the above authority does not advance the argument of the learned counsel. The point under consideration in the above case was whether a plaintiff is required to file a separate application under Order XXXIII, Ride 2, apart from the plaint filed by him. The Court took the view that it is not necessary for the pauper to file separate application to sue as a pauper and such a request to sue as a pauper can be made in the plaint itself. It was in the above. Context that it was observed that forma pauperis application, being a composite document consisting of an application to sue as a pauper and plaint, no separate application other than a plaint for suing as pauper is required to be moved. The said authority does not lay down the rule in converse as convassed on behalf of the defendants. If a separate application is filed for permission to sue as pauper and copy of the plaint is attached thereto, duly signed and verified, in my humble opinion the requirement of the law cannot be said to have remained unfulfilled. I am, therefore, of the humble view that the copy of the plaint, though not signed and verified, is to be accepted as a plaint and in case it is not signed and verified, the defect being curable, can be allowed to be rectified. The said copy is accordingly accepted as such. The plaintiff shall sign and verify the said plaint, as required under the law, subject to the findings here in below.
25. ' The next contention of the learned counsel that the plaintiff is not entitled to permission to sue as pauper as he has failed to disclose the particulars of the movable and immovable properties belonging to him, in the schedule. The learned counsel has drawn my attention to the evidence brought on record by the plaintiff in proof of his being pauper. The following factors have come in evidence.
26. ' The plaintiff deposed that he was living in a flat having pugree value of Rs,200,000, out of which 1/3rd is to be paid to the landlord for the change of receipt, if the flat is let out. He admitted that he has acquired a plot from defendant No,3 in Shah Latif Town, K.DA. Scheme No,45. The said plot is in his possession. The above plot was acquired by him on payment of Rs,1,31,000. It was admitted by him that the Society has sent him a pay order of Rs,1,31,000 on 12-12-1987 which was returned by him and the Society in December, 1988 issued a cheque of the same amount to him which was returned by him. The above pay order was forwarded by the Society to him on cancellation of the allotment by the Society. The allotment of the said flat was cancelled about five years before filing the pauper application. The plaintiff has not sought any relief against the said cancellation, but at the same time has refused to receive the refund of the amount paid by him to the Society towards part payment of the consideration thereof. He also disclosed that he was receiving Rs,1,000 per month from his son. The plaintiff's witness Abdul Karim Yaqoob in his evidence disclosed that the average value of the assets lying in the flat of the plaintiff might be about forty to fifty thousand rupees. The respondents' witness Shabbir Hussain disclosed that the sale of the aforesaid plot was cancelled as the petitioner had failed to pay the instalments. He further deposed that in June, 1991, the applicant had got his son married and the expenses of the marriage were borne and paid by the applicant. The plaintiff had paid a sum of Rs,15,000 to 20,000 to the petitioner towards the charges of marriage all alone.
27. ' The learned counsel submitted that it was the duty of the plaintiff to have disclosed the aforesaid admitted properties owned by him and so also the money that was being received by him. The fact that the plaintiff had concealed the aforesaid properties in the schedule, was sufficient by itself to disentitle I him to the grant of permission to sue as pauper. He referred to the case of Durga Prasad and another v. Srinivasa Sureka and another AIR 1930 Pat. 368, wherein following observations have been made:--- " It is most important that all applications for leave to sue or prefer appeals in forma pauperis should set forth with the utmost good faith as in the disclosure of assets in insolvency proceedings, the whole of the assets of the applicant. It is the practice that notice of the application is sent to the Government Pleader in order that an investigation may be made by the Government officials into the truth or otherwise of the applicant's statement of fact and, therefore, it is incumbent upon the applicant to state with the utmost good faith all the necessary materials for such an investigation.
28. If he merely states that he is a poverty-stricken individual with no assets but a few valueless articles and conceals the fact that he has interest in properties, of however, little ultimate value, it is impossible for the enquiry to be conducted with any efficiency. Therefore, it must be understood in future that if it should be revealed in the course of the hearing of the application that the applicant has not stated with the utmost good faith the whole of his assets the application will be rejected at the very earliest stage."
29. ' The above view has found approved in the following cases:---
(i) Pokhan Gorain and others v. Bengali Gorain and others AIR 1941 Pat. 621
(ii) Kuppuswa mi Naidu v. Varadappa Naidu and others AIR 1943 Mad. 11
(iii) Standard Vacuum Oil Co. v. Ch. Anwar-ul-Haq PLD 1959 (W.P.) Lah. 855 ' The view expressed in Kuppuswa mi Naidu (supra) was followed in the case of Chellammal v.
30. Muthulakshmi Ammal AIR 1945 Mad. 296 and the latter two cases were followed by a Division Bench of Dacca in The Sailkupa Cooperative Multipurpose Society Ltd. v. Jahangir alias Abul Khair Muhammad Hadi-ul-Karim (minor) and others PLD 1957 Dacca 374.
31. ' It is pertinent to point out that in the case of Durga Prasad (supra), the plaintiff was refused leave to appeal in forma pauperis on the sole ground that the plaintiff had not setforth his assets with utmost good faith in that he had suppressed his right of redemption.
32. ' The term 'belonging' used in rule 2 of Order =CHI came up for interpretation in the case of The Sailkupa Cooperative Multipurpose Society Ltd. (supra) and it was observed that the above term includes not only movable and immovable properties in possession of the party but also properties in which the plaintiff has some interest. Same view was expressed in the cases of Kuppuswami Naidu and Chellammal (supra). It was further observed in the said cases that the fact that even if the suppressed assets were disclosed, it would not affect that question of pauperism, is not relevant factor to be considered. In the case of Standard Vacuum Oil Co. Ltd. (supra), the plaintiff was non-suited as he had suppressed the debt due to him, reiterating the view expressed in Durga Prasad case. If the plaintiff does not disclose all his assets with utmost good faith, then regardless to the motive for not doing so, his application is liable to be rejected.
33. ' Following the rule laid down in the above authorities, I find that the plaintiff had deliberately suppressed the Pugree value of the flat occupied by him, his entitlement to receive Rs,1,31,000 from defendant No,3, refrigerator, television and other household affects belonging to him and is, therefore, not entitled to sue in forma pauperis.
34. ' The application for leave to sue in forma pauperis is, therefore, dismissed. However, the applicant is granted 15 days' time to pay the court-fee and at the same time to present duly signed and verified plaint, representing the averments in toto, made in the copy of the plaint attached to his application under Order XXXIII, Rule 2, C.P.C.