Case Note & Summary
The dispute arose from an application filed by R. P. Kapur on April 29, 1962, seeking permission to sue in forma pauperis against M. L. Sethi and his wife for recovery of damages of Rs. 7,48,000 for malicious prosecution. Notice of the pauper petition was given to the State Government and to M. L. Sethi under Order 33 Rule 6 of the Code of Civil Procedure, 1908. Both the Government and M. L. Sethi filed objections contending that R. P. Kapur was not a pauper. Subsequently, M. L. Sethi filed an application for discovery of documents from R. P. Kapur to prove that he was not a pauper. The trial court, by order dated February 23, 1970, directed R. P. Kapur to discover on affidavit documents relating to his bank accounts, including pass books, cheque books, counterfoils, from March 1, 1963 to the date of filing the affidavit, as well as documents concerning properties held by him and personal accounts maintained by him. The order specified that no extension of time would be allowed. R. P. Kapur did not file the affidavit. On March 31, 1970, he sought time to file a revision against the discovery order, which was rejected on April 4, 1970 on the ground that the pauper application had been pending for seven years. A further application for adjournment to adduce evidence was also rejected, and as counsel reported no instruction and there was no evidence of pauperism, the trial court dismissed the application for permission to sue in forma pauperis and directed R. P. Kapur to pay court fee within fifteen days. R. P. Kapur challenged both orders in revision before the High Court of Allahabad. The High Court set aside the orders, holding that proceedings under Order 33 rules 6 and 7 are summary and discovery should not have been ordered, the documents were not specified, the inquiry was primarily between the plaintiff and the State Government, the trial court acted with material irregularity, privilege was overlooked, and the trial court acted with anxiety to dispose of the application. M. L. Sethi appealed to the Supreme Court by special leave. The Supreme Court allowed the appeal, holding that a suit commences from the moment an application for permission to sue in forma pauperis is presented, and therefore discovery under Order 11 Rule 12 applies to proceedings under Order 33. The Court held that the discovery order was sufficiently specific, that documents need not be admissible in evidence but only relevant to the matter in controversy, that bank account documents were relevant to determine means to pay court fee, that the inquiry into pauperism was not exclusively between the plaintiff and the Government and the defendant had a valuable right, that the stage for claiming privilege had not been reached, and that the trial court had jurisdiction to pass the order and did not commit any jurisdictional error or material irregularity in dismissing the pauper application after rejecting adjournments. The Supreme Court concluded that the High Court was not justified in interfering in revision under Section 115 CPC. The appeal was allowed, the High Court's order was set aside, and the trial court's orders were restored.
Headnote
A) Civil Procedure - Discovery in Pauper Proceedings - Applicability of Order 11 Rule 12 to Order 33 Proceedings - Code of Civil Procedure, 1908, Order 33 Rules 6, 7; Order 11 Rule 12 - Suit commences from the moment an application for permission to sue in forma pauperis is presented under Order 33; therefore, provisions of Order 11 Rule 12 relating to discovery apply to proceedings under Order 33 - Held that discovery is permissible in pauper proceedings (Paras 701-702). B) Civil Procedure - Specificity of Discovery Order - Order 11 Rule 12 and Rule 21 - Code of Civil Procedure, 1908, Order 11 Rules 12, 21 - A party seeking discovery cannot specify documents not in its possession or custody; an order directing discovery of bank accounts, pass books, cheque books, counterfoils and documents relating to properties and personal accounts from a defined period was as specific as possible - Held that the discovery order was valid and failure to comply attracts penalties under Order 11 Rule 21 (Paras 702). C) Civil Procedure - Pauperism Inquiry and Parties - Order 33 Rules 6 and 9 - Code of Civil Procedure, 1908, Order 33 Rules 6, 9 - Inquiry into pauperism is not a matter exclusively between the plaintiff and the State Government; the defendant has a valuable right to immunity from litigation without court fee and may participate in the inquiry and seek discovery - Held that private party defendant can seek discovery to disprove pauperism (Paras 703). D) Evidence - Relevance of Documents in Discovery - Order 11 Rule 12 - Code of Civil Procedure, 1908, Order 11 Rule 12 - Documents sought in discovery need not be admissible in evidence; it is sufficient if they are relevant for throwing light on the matter in controversy and may lead to a train of inquiry; bank account documents were relevant to determine means to pay court fee - Held that High Court erred in holding documents irrelevant (Paras 702-703). E) Evidence - Privilege Against Discovery - Order 11 Rule 13 - Code of Civil Procedure, 1908, Order 11 Rule 13 - Stage for claiming privilege arises only after affidavit of discovery is filed and inspection of specific documents is sought; premature objection to discovery on ground of privilege was not sustainable - Held that order for discovery did not affect plaintiff's right to claim privilege at the proper stage (Paras 702). F) Civil Procedure - Revisional Jurisdiction and Jurisdictional Error - Section 115 - Code of Civil Procedure, 1908, Section 115 - Distinction between errors of law relating to jurisdiction and errors within jurisdiction; once court is entitled to enter upon inquiry, subsequent errors are not jurisdictional; practical effect of Anisminic reduces difference but material error of law still required; trial court had jurisdiction to order discovery and dismiss pauper application, and refusal to adjourn did not occasion failure of natural justice - Held that High Court was not justified in interfering in revision (Paras 705-707).
Issue of Consideration
Whether discovery of documents is permissible in proceedings under Order 33 CPC for permission to sue in forma pauperis; whether the trial court's order for discovery and dismissal of the pauper application suffered from jurisdictional error or material irregularity warranting revision under Section 115 CPC
Final Decision
The Supreme Court allowed the appeal, set aside the judgment and order of the High Court of Allahabad dated August 27, 1971 in Civil Revision No. 680 of 1970, and restored the trial court's orders dated February 23, 1970 and April 4, 1970. The Court held that the trial court had jurisdiction to order discovery of documents and to dismiss the application for permission to sue in forma pauperis after rejecting adjournments, and that the High Court was not justified in interfering in revision under Section 115 CPC.
Law Points
- Suit commences upon presentation of application for permission to sue in forma pauperis
- discovery under Order 11 Rule 12 applies to proceedings under Order 33
- inquiry into pauperism is not exclusively between plaintiff and State
- defendant has valuable right to contest pauperism
- documents sought in discovery need not be admissible but only relevant to matter in controversy
- stage for claiming privilege arises after affidavit of discovery
- for Section 115 CPC
- errors of law within jurisdiction are not jurisdictional errors unless they amount to material irregularity or failure of natural justice
