' This writ petition impugns the orders, dated 18-5-1999 passed by Sheikh Mehboob Ilahi, learned Additional District Judge, Khanewal, in a revision petition whereby he reversed the order passed by the learned trial Court , dated 14-7-1998 disallowing permission to the respondent No,2 to amend her application which she had made under Order XXXIII of the Civil Procedure Code in "forma pauperis".
2. Mst. Farkhanda Khanum, the respondent No,2 in this case, had filed an application under Order XXXIII of the Civil Procedure Code for permission to sue as pauper and recover a sum of Rs,21,45,605 from the present petitioner Moeen Nawaz Khan, her former husband. This amount she had calculated as the price of her dower articles. Alongwith an application she also annexed schedule indicating the details of her dowry articles and of her immovable property respectively. At the stage of the examination of the petition, she moved an application that she be allowed to add details of her two bank accounts as well as value of her some omitted articles in the petition. This was disallowed by the learned Senior Civil Judge, Khanewal, on the ground that she was aware of her bank accounts at the time of the filing of the petition as well as of her other articles and, therefore, the omission was not inadvertent. He, therefore, rejected the application seeking amendment and fixed the main petition for arguments.
3. The matter then went before the learned Additional District Judge, Khanewal in revision.. The learned Additional District Judge allowed the amendment while observing that the proposed amendment did not change the nature of the dispute and that there is already evidence on record about those bank accounts and about the fact that the money in those bank accounts had been deposited by her relations for her children.
4. Before the learned Additional District Judge, an objection was taken with respect to his pecuniary jurisdiction in view of the valuation of the suit at rupees over 21 lacs. The learned Additional District Judge dismissed the objection on the ground that at the stage of the revision, an application was merely pending before the trial Court and it had yet to be converted into a suit. That it is after the conversion of the petition into a suit that the question of valuation for purposes of jurisdiction and court-fee would arise. He, therefore, set aside the impugned order. Against which orders, this writ petition is filed.
5. The main attack of the learned counsel for the petitioner is that even though an application for permission to sue as a pauper was pending, yet question of jurisdiction would always be kept in sight and as the learned District Judge did not have a visitorial jurisdiction or a jurisdiction in appeal on the valuation of the subject-matter, the order being impugned was corum non judice.
6. On the other hand, it is said by the learned counsel for the respondent that the issue of pecuniary jurisdiction was still premature and the order in revision was correct.
7. Order XXXIII of the Civil Procedure Code deals with such applications and suits. The purpose of law is of three-folds: (i) to protect the bona fide claim of a pauper; (ii) to safeguard the interest of the Revenue; (iii) to protect the defendants' right not to be harassed.
8. This order provides a whole scheme for filing of such applications. The way these are to be dealt with when these are to be rejected and when these are to be accepted and the time when on being accepted, these take the shape of suit regularly filed.
9. Rule 2 mentions about the particulars which are to be provided in the application. It reads as under:-- "Contents of application.--- Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the 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."
10. Rule 3 relates to the presentation of application.
11. Rule 4 speaks of the examination of the applicant and it reads as follow:-- "Examination of applicant.--- (1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.
(2) If presented by agent, Court may order applicant to be examined by commission. Where the application is presented by an agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken."
12. Rule 5 relates to the order of rejection by a Court to sue as a pauper.
13. Rule 5(d), one of the grounds for rejection can be where his' allegations do not show a cause of action.
14. Rule 6 pertains to notice of day for receiving evidence on the applicant's application for pauperism when the opposite party is also called. It also speaks of hearing of any objection in disproof thereof.
15. Rule 7 speaks of the procedure of taking the evidence and for purposes of arguments and it is after the observance of this procedure, the Court has either to allow or refuse the application to sue as a pauper.
16. Rule 8 speaks of the procedure when an application is admitted. It reads as follows:-- Procedure if application admitted.--- Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee (other than fee payable for service of process) in respect of any petition, appointment of a pleader or other proceedings connected with the suit."
17. Whereas Rule 9 relates to dispaupering and Rule 10 pertains to the . Costs where pauper succeeds. While Rule 11 relates to the procedure where he fails.
18. Rule 12 permits the Provincial Government to ask for payment of the court-fee, while Rule 11(a) deals with the procedure where the suit fails on accounts of the death of the plaintiff or otherwise.
4
19. Rules 13 and 14 speak of the right of Provincial Government to be considered as a party and Rule 15 creates an embargo on an application to sue as a pauper through a subsequent application in respect of the same right to sue in case his previous application had not been accepted. However, it allows him to institute a suit in the ordinary manner against payment of cost to the Provincial Government or the opposite party.
20. It appears from the procedure set for such suits that the application which is made before it is converted into (sic) the suit, is in the nature of a. Composite application which is an application but has the features of a suit and once it is admitted, it is numbered and registered as a plaint in the suit and the suit proceeds in all respects as a suit in the ordinary manner.
21. Where, of course, a suit was not otherwise competent and where an application in forma pauperis did not show a cause of action, the application is not maintainable. But who has then to decide whether the application is maintainable or not and whether permission can be allowed under Rule 8 or refused. This is of course a civil Court of competent jurisdiction which acts under the Civil Procedure Code and adheres to the special procedure designed to ameliorate the hardship of those who cannot pay the court-fee.
22. When the value is fixed for a jurisdiction which only a 1st Class Civil Judge can exercise, the application will be submitted to such a Court and not to any Court exercising civil jurisdiction.
23. Against an order whether allowing or disallowing the application, a revision petition is preferred, a Court of error hears a revision petition corresponding to the pecuniary jurisdiction, it enjoys in appeal. It cannot correct the error committed by a subordinate Court which is not subordinate to it in view of pecuniary jurisdictional aspect.
24. In the following cases, it has been held that an application for permission to sue in forma pauperis whether allowing or rejecting application constitutes a case decided and is open to revision. Abdur Rauf v. Khalid PLD 1968 Lah. 423, Sardar Hari Chand v. Durga Devi AIR 1941 Lah. 128, Firm Bhajan Ram Gil Raj Mal v. Mst. Narain Devi AIR 1926 Lah. 642, Hafi Karishna Datta v. K.R. Khosfa AIR 1934 Lah. 231, Sadaqat Ali Khan v. Muhammad Sajjat Ali Khan AIR 1929 Lah. 257, Venkatakrisnaya v. Sayamma AIR 1926 Mad. 958, Bihari Sahu v. Sudama Kuer AIR 1938 Pat. 209, Ma Ma Gale v. Ma Mi AIR 1931 Rang. 318, Durga Prasad v. Gur Dularey AIR 1938 Oudh 146, Rai Chandan v. Chhotalal Jekisond AIR 1932 Born. 584, Ram Dulari v. Alian Bibi AIR 1942 Oudh 240, Raman Ali v. Satul Bibi AIR 1948 All. 244, B.B. And C.I. Ry. Co. v. Nitthu AIR 1931 All. 659, Sundar Das v. Mst. Narain Devi 87 PR 1912 and Maratab Ali v. Madan Lal AIR 1934 Lah.
295.
25. Whether the Court of error takes up a matter under the jurisdiction vested in it in view of section 115 of the Civil Procedure Code, it takes into consideration the fact whether a Court below had exercised a jurisdiction not vested in it by law or have failed to exercise its jurisdiction so vested.
Thus, in a revision petition the question of jurisdiction is one of utmost importance and a Court of error can only exercise its powers where it exercises jurisdiction whether pecuniary or territorial and not otherwise. Although an application turns into a plaint only on the ground of permission but for all purposes it is a plaint. The only extraordinary thing about this is that it is asking for exemption of the court-fee and is submitted to the test prescribed by Order XXXIII meant to safeguard the interest of the Provincial Government etc. While also providing a facility to the petitioner. Merely because it subsequently, emerges or takes the nomenclature of a plaint does not take away its intrinsic value of being a plaint on the threshold of becoming a suit if permission is allowed with respect to the exemption of the court-fee. How can this application be, therefore, treated as just a miscellaneous application to be filed anywhere without regard to the pecuniary or territorial jurisdiction? How can a Court take step as envisaged by Order XXXIII of the Civil Procedure Code without having the competency and the powers both pecuniary and otherwise of taking those steps and every step taken by a Court is in view of the jurisdiction, it holds and not otherwise.
Reference in this connection may be made to the case of West Pakistan Province v. Hazrat Gul Khan and another PLD 1966 Pesh.
34.
26. The application for permission to sue as a pauper can even be rejected on grounds of res judicata and bar of limitation. Haur Kur v. Munni Lal AIR 1919 (Lah.) 4, Bhino v. Tin Nath AIR 1963 Orisa 223, Yousaf Abid v. Secretary AIR 1936 Sindh 130 and Fazal v. Abdul Hussain PLD 1977 Kar.
772.
27. As the entire case has opened up before this Court and while keeping in view the ends of justice, this Court is, therefore, of the view that the application under Order XXXIII of the Civil Procedure Code in forma pauperis has to follow the dictates of law with respect to jurisdiction both pecuniary and territorial, although it qualifies to be a suit upon a plaint on the date it receives the permission which itself has a retrospective effect. Because it is then allowed to be registered as a suit from the date of the filing of the application.
28. Of course where there is a dispute as to the valuation of property, the Court has not to go into such a dispute for purposes of ascertaining its pecuniary jurisdiction until it has allowed permission and the matter is registered as a suit. But where a plaintiff chooses to affix the valuation, there is no doubt left about the pecuniary jurisdiction on the face of the application. Then the best thing is to file the application before a Court having such a jurisdiction. Therefore, the present circumstances of the case are different than the case decided as AIR 1950 Pat.
309.
29. Focusing on the order of the learned Additional District Judge, this Court in the light of the observations, above referred, feels that he had no jurisdiction in the matter and the learned Additional District Judge was in error in coming to the conclusion that he was merely hearing the petition and no question of jurisdiction was involved. Forgetting that the application itself had placed value on the pecuniary side and he had no jurisdiction while sitting as a Court of error to appropriate to himself the said jurisdiction. The order is, therefore, set aside.
30. This Court is fortified by the decision in the cases of Muhammad Ali v. Major Muhammad Aslam and others 1988 CLC 718 and Mst. Hassan Perveeri and others v. Muhammad Zafar Ullah and others PLD 1986 Lah.
409.
31. It was said by the learned counsel for the respondent that the question involved in this case was novice of the case-law. I agree with this statement and as the purpose of Order XXXIII of the Civil Procedure Code is ameliorative and benevolent, and as the order passed by the learned Additional District Judge was not sustainable in law in view of the technicalities involved and as the question of this nature has arisen for the first time recently and as the purpose of this Court is not to trap litigants and as the order of the learned trial Court is already before this Court and can be reviewed, this Court is inclined to suo motu review this order.
32. In this case the amendment was being sought in the schedule of the application pertaining to the property and this was being sought by the petitioner without there being any objection from the other side of concealment. The trial Court ought to have allowed this amendment before fixing the case for decision whether the petition was to be allowed or rejected on terms of Order XXXIII.
This fact being already reflected in the statement of the applicant during her examination before the Civil Court. The trial Court is directed to allow her the amendment as refusal would be illogical and incorrect. Under the circumstances, this writ petition is disposed of accordingly. Parties are directed to appear before the learned trial Court on the 10th of April, 2000, so that it may further proceed with the application.