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Civil Rule No. 774 of 1954, decided on 16th December 1954, against the order dated 46th May 1954, of the sub ordinate Judge, 1st Court, Dacca, in Miscellaneous Case (Pauper) No. 36 of 1953.

Civil Procedure Code (V of 1908), O. XXXIII, rr. 2 & S (a) Inadvertent omission to include one solitary item in application under O. XXXIII, r. 2‑Whether a non‑compliance with provisions of O. XXXIII‑Omission to state value of suit Material omission but not fatal to application.

Inadvertent omission to include one solitary item of property in the application is not a non‑compliance with the provisions of O. XXXIII, r. 2 of the Civil Procedure Code and the applicant is to be permitted to amend his application by including the item of property that was omitted by inadvertence.

Similarly though the omission to state clearly in the application the value of the suit is a material omission yet it is not fatal to the application and the applicant should be permitted to make the necessary amendment.

Sm. Bagala Sundri Devi v. The Rivers Steam Navigation Co. Ltd., 38 C W N 548 rel.

Ranjit Kumar Bose for Petitioner.

S. K. Chakraborty and Ramani Kanta Bhattacharjee for Opposite‑Party.

This Rule was issued at the instance of the Pakistan Motor Owner's Mutual Insurance Company, Ltd., and is directed against the order of the Subordinate Judge, 1st Court, Dacca, dated the 26th May 1954, permitting the opposite party Sheikh Shamsuddin to sue the petitioner in forma pauperis.

This Rule was issued on two grounds, namely, (1) "That the application to sue as pauper was not framed in accordance with law and the omission of an income of Rs. 30 per mensem was mala fide."

(2) "That the opposite party neither valued his claim in the pauper application for the purpose of jurisdiction and Court fees, nor calculated the Court fees payable on the claim in suit."

Order XXXIII of the Code of Civil Procedure provides for "Suits by Paupers" and begins with the words "Subject to the following provisions; and suit may be instituted by a pauper".

Then an explanation is given of the term pauper' and in the next Rule, namely, Rule 2 of the said Order, it is provided that "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, an shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings."

Then Rule 5 provides that "The Court shall reject an application for permission to sue a pauper (a) where it is not framed and presented in the manner prescribed by Rules 2 and 3." We are not concerned with Rule 3 in the present case. The petitioner relied upon two defects in the application made before the Subordinate Judge for permission to sue as a pauper, namely, (1) that an income of rent of Rs. 30 per month which the petitioner was receiving and which was admitted by him in his deposition was not included in the Schedule of properties given by him, and secondly, that the valuation for the purposes of Court‑fee and juris diction was not stated, as required by O. XXXIII, rule 2 read with O. VII, rule 1, clause (f) of the Code of Civil Procedure. It was urged that on these rounds the learned Subordinate Judge was bound to reject the application of the opposite‑party, and not having done so, he failed to exercise a jurisdiction vested in him by law. We have heard the learned Advocates on the point and perused the records of the case. We find that while the opposite party was giving his deposition in support of his application for permission to sue as a paupers he stated in his examination‑in‑chief and re‑examination of his own accord, that he was getting rent of Rs. 30 per month by sub‑letting a portion of the house which he was occupying, and for which the was paying Rs. 30 as rent to the superior landlord. This was not elicited by any question put in cross‑examination to him. In the circumstances, we are inclined to hold that this was not a case of deliberate suppression but an inadvertent omission. In a similar case, namely in the case of Sm. Bagala Sundari Devi v. The Rivers Steam Navigation Co. Ltd., (38 C W N 548), the Calcutta High Court did not uphold the rejection of the application of the pauper but permitted him to amend his application by including the item of property that was omitted by inadvertence. In fact, on the facts of the case, they went even further and stated that there was no defect in the form or frame of the application and the omission to include one solitary item of property was, in their judgment, not a non‑compliance with the provisions of O.XXXIII, rule 2, of the Code of the Civil Procedure.

If that were the only defect in the present application we perhaps, might have held the same view; but as there is an omission to clearly state the amount of the claim for the purpose of Court fees and jurisdiction in the appli cation of the opposite‑party, which is an essential item that should be included in every application made under O. XXXIII in order to enable the Court to find out what amount of Court fee is required to be paid by a petitioner in relation to his means, we cannot lightly pass over it. In his appli cation where the pauper opposite‑party has mentioned the amount of the claim in paragraph 9, he states as follows: "That the opposite‑party is to pay your petitioner Rs. 11,200 as the amount due under the said policy, in addition to Rs. 300 per month for loss of business." So, it is evident that he has not laid down his claim of any definite figure and one of the reliefs that he mentions in that application in paragraph 15 (c) is as follows: "That a monthly com pensation of Rs. 300 may be decreed against the opposite party from 2nd January 1953, till the realization of the decretal dues as loss of business in favour of the petitioner. If he wanted to put forward any claim in addition to the amounts for which his car was insured under the policy held by him, for the purpose of jurisdiction and Court fee, he should have to put down a tentative value as is generally done in suits for accounts, etc. This was not done and even the word valuation of the suit or value of the suit' does not find place anywhere in his petition. We consider this to be a material omission but we do not hold that it is fatall to the opposite party's application.

We, therefore, make the Rule absolute, set aside the order of the learned Subordinate Judge and send the case back to him for rehearing after permitting the opposite party, Shaikh Shamsuddin, to amend his petition with regard to the two matter stated earlier in this judgment. The parties will be at liberty to adduce additional evidence on points that arise out of the amendment and the Court will deal with such evidence in addition to the evidence already on record and decide the case in accordance with law.

In the circumstances of the case, we make no order as to costs.

---I agree.

K. B. A

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