' This petition under section 115 of Code of Civil Procedure arises out of an application moved by the petitioner on 3-6-1981 for permission to file a suit for recovery of articles of dowry or value thereof amounting to Rs,2,033,665 in forma pauperis which was dismissed by the Trial Court on 11-2-1992 on the ground that the said application had not been presented by the petitioner in person but by her learned counsel.
2. The revision petition was originally filed in the District Court but it was returned by the Additional District Judge on 18-4-1993 for presenting it to this Court in view of the value of the subject-matter being in excess of his pecuniary jurisdiction.
3. In support of this petition two grounds have been urged by the petitioner's learned counsel. Firstly that as the petitioner was a Pardanashin lady she was exempted from personal appearance in the Court, and therefore the presentation of the application by the counsel on her behalf was valid.
Reliance in this regard was placed by the learned counsel on Abdul Rauf v. Mst. Khalida (PLD 1968 Lahore 423). The second submission was that the power to reject an application on the ground mentioned in rule 5 of Order 33 of Code of Civil Procedure could only be exercised before notice under rule 6 of Order 33 had been issued and not subsequently.
4. Learned counsel appearing on behalf of the respondents has on the other hand contended that there was nothing on the record to show that the petitioner was a Pardanashin lady and as such she cannot take shelter behind section 132 of the Code of Civil Procedure. According to the learned counsel the application having not been presented by the petitioner in person as required by rule 3 of Order 33 of Code of Civil Procedure, the Trial Court was justified in dismissing the same. Learned counsel while relying upon Mst. Inderwati v. Hari Ram and another (AIR 1937 Lahore 318) has argued that the provisions of Order 33, rule 3 were mandatory in nature and in the event of its non- compliance the Court was competent to reject the application at any stage.
5. The contention raised by the learned counsel for the petitioner cannot be accepted. There can be no cavil that if the petitioner is a Pardanashin lady she is exempted from personal appearance by virtue of section 132 of Code of Civil Procedure and she is, therefore, entitled to present the application through a duly authorised agent. However in the present case there is nothing on record to show that the petitioner was a Parda-observing lady rather had even been claimed to be so. The application under Order 33, rule 2 of Code of Civil Procedure filed by the petitioner is completely silent in this respect. Learned counsel for the petitioner wanted this Court to assume that the petitioner was Pardanashin within meaning of section 132 of Code of Civil Procedure merely on account of the fact that she was Syed by caste. But no such inference can be drawn especially when there is no averment to that effect in the application presented before the Trial Court itself. Confronted with this position learned counsel for the petitioner attempted to rely upon Abdul Rauf v. Khalida (PLD 1968 Lahore 423) to argue that it was not necessary for the petitioner to have mentioned in the application for permission to sue as pauper that she was a Pardanashin lady. That case has hardly any application to the present case inasmuch as in the application filed in the cited case there was no averment to the effect that the petitioner was a Pardanashin lady but this fact had been asserted in another application filed by her under section 132 of Code of Civil Procedure claiming exemption from personal appearance. In the present case unfortunately no such application was presented and there is thus no material on the record on the basis of which it could be held that the petitioner was a Pardanashin lady. In these circumstances the rule laid down by the Lahore High Court in Mst. Inderwati v. Hari Ram and others (AIR 1937 Lahore 318) becomes applicable. This case was considered in Abdul Rauf's case (supra) but was distinguished by observing that there was material in the form of power of attorney and other documents to show that the petitioner in that case was a Pardanashin lady in view of which the application could not be dismissed even though there was no averment to that effect in the application. However, as already pointed out in the present case there is not even an iota of material to show that the petitioner was a Pardanashin lady.
6. The impugned order is however liable to be struck down on the second ground urged by the learned counsel for the petitioner which was that having once issued notice in the application to the opposite side and the Collector in terms of Order 33, rule 1 of Code of Civil Procedure power of rejection under rule 5 could not be exercised.
7. It is common ground between the parties that the application when presented was not only entertained by the Court but her statement was also recorded whereafter a report was requisitioned from the Collector. A notice in terms of rule 6 had also been issued to the respondents. Unfortunately the report was received after about 10 years and it was only on 11-2- 1992 that the application was dismissed solely on the ground that it has not been presented in person as required by rule 3 of Order 33.
8. On a conjunctive reading of rules 3, 5 and 6 of Order 33 it becomes obvious that the rejection on the ground that the application has not been framed or presented in the manner prescribed by rules 2 and 3 can only be made at the preliminary stage and without issuing any notice to the opposite side and the Government Pleader in terms of rule 6 of Code of Civil Procedure. There can be no again saying that rule 5 is penal in nature and therefore must be strictly A construed. Rule 6 by itself ordains that where the Court finds no reason to reject the application on any of the grounds under rule 5, it shall issue notice to the opposite side and Government Pleader. The issuance of a notice under rule 6 is clearly an indication that there was no ground for rejecting the petition under rule 5. The rationale behind this provision is self-obvious which is an incompetent application must be rejected in its infancy, so that the applicant can move a fresh application after removing the defects. If such an application is dismissed after about 10 years as in the present case no remedy at all is left for the affected person. I am fortified in this view by cases from foreign jurisdiction namely Mst. Chandrabhagabai w/o Sampat Gathe v. Ramchandra Sampat Gate (AIR 1947 Nagpur 14) and Sibasandar Tiadi v. Koli Tihadhiani and others (AIR 1964 Orissa 106).
9. It may also be stated that there is no case directly in point from this Court or from the Supreme Court of Pakistan. However, there are certain observations in Standard Vacuum Oil Co. v. Ch. Anwar-ul-Haq (PLD 1959 Lah. 855) which on first impression appear to run counter to the view taken above. But with due respect, these observations are in the nature of obiter dicta as that case was decided on the ground that the application moved in that case was mala fide. It is also to be seen that according to rule 7 of the Order 33 of Code of Civil Procedure no doubt the application can be rejected even after recording evidence, on any prohibition mentioned in rule 5 of Order 37.
The use of the word 'prohibition' in rule 7 while referring to rule 5 is not without significance. This has the effect of bringing in the grounds mentioned in clauses (d) and (e) of rule 5 into play and not all the other clauses. In the present case the application was rejected on the ground of invalid presentation and not on account of prohibition mentioned in rule 5.
10. It has been time and again emphasised by the superior Courts that provisions of Code of Civil Procedure are not to be used as trap but are designed to foster justice and decide the rights of the parties. In these circumstances I am clearly of the view that the Trial Court has acted illegally and in excess of jurisdiction in rejecting the application for permission to sue as forma pauperis on the ground that it has not been presented in the manner prescribed by rule 3 of Order 33, Code of Civil Procedure.
In view of what has been stated above, this petition is allowed, impugned order is set aside, case is remanded to the Trial Court for decision afresh of the application for permission to sue as pauper in accordance with law.