JUDGMENT D.K. Seth, J.
1. The plaintiff-opposite party had applied for Institution of a suit for partition against the petitioner-defendants in forma pauperis. The defendants had filed objection to the application under Order XXXIII, Rule 1 filed by the plaintiff and had filed affidavit in support of their objection as well as different documents. On the question of permission to be granted to sue as pauper to the plaintiff, the parties had addressed in the Court and hearing is over. At that stage, an application was filed for appointment of a handwriting expert to prove the alleged signature on a document alleged to be a receipt signed by the plaintiff acknowledging return of all ornaments and other valuable properties. The said application was rejected by an order dated 3rd February, 1999 passed by the learned Civil Judge, Kannauj in O.S. No. 170 of 1996 in which the plaintiff had sought for partition. By an application filed on 28th April, 1999, the defendants had prayed for time to adduce evidence on the application under Order XXXIII, Rule 1. The said application was rejected by an order dated 28th April, 1999 on the ground that all documents have been placed and evidences have been adduced and that argument on behalf of the defendant was also over. Against the order dated 28th April, 1999 Civil Revision No. of 1999 was preferred. The said civil revision was dismissed by an order dated 10th August. 1999 passed by the learned District Judge. Kannauj. These orders had since been challenged in this writ petition.
2. Mr. Rajeshwari Sahai, learned counsel for the petitioner had assailed the said two orders on the ground that the suit was valued above one lakh rupees and, therefore, the suit could not be maintained before the Civil Judge, senior division who had jurisdiction upto one lakh rupees. In support he relies on the finding in the order dated 10th August, 1999 passed in revision, wherein it was held that the value of the suit being above one lakh rupees, revision did not lie before the learned District Judge. Therefore, the order dated 3rd February, 1999 and 28th April, 1999 passed by the learned Civil Judge. Senior Division cannot be sustained. He then contends that the plaintiff No. 1 sought to represent the interest of her son plaintiff No. 2 a minor in the suit. But since the plaintiff, who is widow, is about to remarry someone else, therefore, she cannot be the guardian of her minor son. The Court ought to have appointed the grandfather as guardian of the minor. Therefore, the matter cannot be proceeded without appointing a guardian of the minor and as such, the order dated 3rd February, 1999 and 20th April, 1999 passed by the learned Civil Judge, Senior Division, Kannauj cannot be sustained. He further contends that since the signature of the plaintiff on the alleged receipt acknowledging receipt of her ornaments having been denied, the same could be decided only by means of an opinion of Hand Writing Expert and as such, the order refusing appointment of Hand Writing Expert is wholly illegal and arbitrary. The refusal to grant an opportunity to adduce evidence is also equally arbitrary and illegal. He contends that in order to prove that the petitioner Is not a pauper and she has sufficient means to pay the court-fees and she does not come within the scope and ambit of Order XXXIII Rule 1, such an expert was necessary to be appointed to find out as to whether petitioner had sufficient means. Therefore, the order cannot be sustained. On these grounds, he had assailed the impugned orders before this Court,
3. I have heard Mr. Sahai at length.
4. The question of jurisdiction can be raised at any point of time before settlement of the issues. The issues are yet to be settled, after the suit is registered. The question of jurisdiction cannot be gone into within the scope and ambit of Order XXXIII, Rule 1 of the Code of Civil Procedure. The entire Order XXXIII of the Code is confined within the finding as to whether the leave to sue as forma pauperis can be granted to the plaintiff. The enquiry cannot surpass the restricted confine of Order XXXIII. All other issues with regard to the suit cannot be raised and gone into within the scope and ambit of an enquiry under Order XXXIII of the Code.
5. The issues are settled only after a suit is registered. Order XXXIII is a stage before the suit is registered. The application to sue in forma pauperis is not treated as a plaint until the leave is granted. In view of Rule 8 of Order XXXIII, the application shall deem to be the plaint in the suit only when it is numbered and registered, after the leave is granted and then the suit proceeds in all other respects as a suit instituted in the ordinary manner except with regard to payment of court-fees. The question of maintainability of the suit or with regard to deciding issues with regard to maintainability otherwise as preliminary issues could arise only when the application becomes a plaint by reason of deeming clause. By fiction of law, an application under Order XXXIII is not a plaint until the leave is granted. It becomes a plaint only when leave is so granted. Therefore, there is no scope for either framing of issues as to maintainability or deciding such issues.
6. Order XXXIII in sub-rule (1) permits an indigent person to institute a suit without payment of Court-fees. Whether a person is indigent or not can be determined according to the description of indigent person contained in explanation I, II and III appended to sub-rule (1) of Order XXXIII. Rule IA confines the enquiry as to whether a person is indigent or not for the purpose of grant of leave to sue as forma pauperis. It provides that initially such an enquiry is to be made by the Chief Ministerial of the Court unless Court otherwise directs. The Court may adopt the report of such officer as its own finding or itself may make an enquiry into the question. Rule 2 prescribes the contents of such applications. It prescribes that the same should contain the particulars as are required in the plaint in a suit and shall include a schedule of all movable and immovable property belonging to the applicant with the estimated value thereof. It further requires to be signed and verified in the same manner a pleading is signed and verified. After the application is presented as provided in Rule 3, the Court may, if it thinks fit, examine the applicant or his agent regarding the merits of the claim and property of the applicant. The Court may also examine the applicant on commission if the application is presented by an agent. The expression 'regarding the merit of the claim' connotes the merit of the claim to sue in forma pauperis. The expression 'merit of the claim' used in Rule 4 does not relate to the merit of the relief claimed in the suit. The expression 'merits of the claim' has to be read conjointly and not disjointly with regard to the later part of the phrase namely "and the property of the applicant". Rule 4 has to be read in its context and in consonance with the scheme of Order XXXIII. While interpreting the provision of law, the Court has to examine the scheme of the provision and its object for incorporating a particular provision having regard to the whole scheme as well as the context in which it is so incorporated. The examination of the applicant or his agent, as the case may be, relates to the merit of the claim to sue in forma pauperis and the property of the applicant in order to ascertain whether the applicant is indigent person within the meaning of Rule 1. The merit of the claim relates to the claim of the applicant with regard to the question as to whether he is an indigent person having regard to his properties.
7. The scope of enquiry and the examination of the application is confined to the question whether the person is indigent or not as has been prescribed and specified in Rule 5. Rule 5 prescribes the grounds on which such application shall be rejected. In view of Rule 5, the Court cannot go beyond the scope and ambit of the enquiry as prescribed in Rule 5. The enquiry is confined as to whether the application should be granted or rejected. Such application can be rejected only on the ground specified in Rule 5 and not otherwise. The consideration of Order XXXIII is confined only to the question as to whether such leave should be granted or refused and not allowed. Such leave would be refused on the grounds as specified in clauses (a) to (g) of Rule 5. In order to appreciate the proposition, it would be beneficial to quote Rule 5 as here-in-after :
Rejection of application.--The Court shall reject an application for permission to sue as an indigent person :
(a) where it Is not framed and presented in the manner prescribed by Rules 2 and 3, or
(b) where the applicant is not an indigent person or
(c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person :
Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person : or
(d) where his allegations do not show a cause of action ; or
(e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter ;
(f) where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or
(g) where any other person has entered into an agreement with him to finance the litigation.
8. A plain reading of the said rule shows that an application for permission to sue as an indigent person shall be rejected where "(a) it is not presented in compliance of Rules 2 and 3. The enquiry with regard to clause (a) related to a technicalities, namely, with regard to the contents of the application and its presentation. The question of merit of the claim relates to the examination in clause (b) as to whether a person is an indigent person or clause (c) where he had disposed of his property with two months next before the presentation of the application in order to enable him to apply for permission to sue as an indigent person. In terms of clause (e), the other enquiry is within regard to the question as to whether he had entered into an agreement with regard to the subject-matter of the suit due to which any other person has obtained an interests in the subject-matter of the suit. The Court has to see in terms of clause (g) whether the person has entered into an agreement of financing the litigation by another person. This clause relates to the question of the claim with regard to the person whether he is an indigent person or not. The only two exceptions under Rule 5 are clauses (d) and (f), Clause (d) provides while considering such application, the Court may look into the allegations and find out as to whether it discloses a cause of action. Under clause (f), the Court may also look into the question as to whether the suit is barred by law for the time being in force. Thus, these are two exceptions with regard to the enquiry contemplated in Rule 4 which relates to the merits of the suit. These two conditions are provided as ground for rejection of the application for leave to sue as forma pauperis. Save and except the grounds provided in clauses (d) and (f) of Rule 5, the Court is not supposed to enter into any other questions with regard to the maintainability of the suit on any ground whatsoever which in effect would be a decision on merit of the suit.
9. Then again Rule 6 requires notice to be given to the Opposite Party and the Government pleader for receiving evidence in proof of the applicant being an indigent person or in disproof thereof. Thus, the scope of enquiry is only confined to the proof or disproof of the applicant being an indigent person. The same is further fortified by Rule 7 in which sub-rule (i) prescribes that on the date so fixed, the Court shall examine the witness produced by either party. By reason of sub-rule (1A), the examination of the witness as provided In sub-rule (1) is confined to matters relating to clauses (b), (c) and (e) of Rule 5 namely as to whether the applicant is an indigent person or he has entered into any agreement within to months next before the presentation of the application fraudulently or in order to enable him to sue in forma pauperis or he had entered into an agreement with reference to the subject-matter creating an interest in favour of any other person. However, examination of the applicant or his agent may relate to any of the other matter specified in Rule 5. The scope of the jurisdiction to be exercised as specified in sub-rule (2) to the extent of hearing ihe argument on the question whether on the face of the application and the evidence, if any, the application is or is not subject to any of the provision specified in Rule 5.
10. Rule 5 refers to the application as a proposed suit which read with Rule 8 clearly indicates that the application remains a proposed suit until it is registered and that it was not a plaint. A suit is instituted by the presentation of the plaint. Whereas by the presentation of the application, no suit is instituted. It remains a proposed suit and it becomes a suit when the leave is granted. By virtue of its being numbered and registered the application becomes a plaint.
11. A combine reading of Rules 4, 5. 6 and 7 reveals that the scope of the enquiry is confined to the extent of finding out as to whether the applicant is an indigent person and whether the application is hit by any of the mischief contained in clauses (a) to (g) of Rule 5. The Court cannot go beyond the same. The examination under Rule 4 is an ex parte examination of the applicant after which if the application is not rejected under Rule 5. the Court Issues notice under Rule 6 on the opposite party. Therefore, so far as with regard to matters covered under Rules 4 and 5 are concerned, the same are not subject to any defence till the notice arc issued. After the notices are issued by reason of sub-rule (1-A) of Rule 7, the defence opposing grant of leave is confined to clauses (b), (c) and (e) of Rule 5 respectively. If the notices are issued under Rule 6, the opposite party or the Collector may or may not contest the application. If they or any of them chooses to contest, the Court is to examine the applicant again touching the point of his indigence. Sub-rule (2) of Rule 7 refers to the evidence taken by the Court under Rule 6. It appears that Rule 6 in sub-rule (2) of Rule 7 is misprinted. It should be Rule 4. Inasmuch as Rule 6 does not postulate taking of evidence or recording thereof. It only postulates of fixing a date to issue notice for receiving evidence. It is under Rule 7 sub-rule (1) where witnesses are examined or cross-examined and evidences are recorded. Therefore, once evidence is taken ex parte under Rule 4 and then evidence is again taken after notice under sub-rule (1) of Rule 7. The reference to Rule 6 or under this Rule or in sub-rule (2) of Rule 7, therefore, definitely refers to the evidence taken under Rule 4 or under sub-rule 7 (1) and (1A) as the case may be.
12. The scheme of the Order XXXIII shows that the non-payment of court-fee would in no way affect the opposite party. The assistance of the opposite party is necessary only for the purpose of enabling the Court to ascertain as to whether leave should be granted. It is to ensure that such leave is given to a deserving person. In effect it is the Government concerned with the payment of court fees. The opposite party is in no way concerned with the payment thereof. But whether a person has sufficient means or not is difficult to ascertain by the Government for which the opposite party is expected to aid the Government. Thus, the scope of the opposition that might be offered by the opposite party would not relate to any other matter excepting as has been prescribed in Order XXXIII.
13. In the case of Chaki Jakeria Abdullah v. Memom Ismail, AIR 1969 Guj 122, it was held that enquiry under Rule 5 of Order XXXIII is confined into the question whether the applicant is indigent or not only when the Court sees no reason to reject the application on any of the grounds mentioned in Rule 5. The enquiry under Rule 1 sub-rules (1) and (2) of Order XLIV of the Code of Civil Procedure is also identical with those under Rule 5, Order XXXIII. In the case of Pavianose v. Sugathan, AIR 1993 Ker 177, it was held that if there is no cause of action, then an application to sue as indigent is liable to be rejected.
14. Under Order XXXIII, Rule 5 clause (d), the Court is concerned with ascertaining whether the allegations made in the petition show a cause of action. The Court is not to see whether the claim made by the applicant is likely to succeed. It has merely to satisfy itself with the allegation made in the petition if accepted as true. If accepting those allegations as true, no case is made out for granting relief, no cause of action would be shown by the applicant and it may not be rejected. In ascertaining whether the petition shows a cause of action, the Court cannot enter upon a trial of the issues affecting the merit of the claim made by the applicant nor can it take into consideration the defence pleas. The Court is not entitled to embark upon an enquiry with regard to the defence plea that certain property standing in the name of the wife of the plaintiff was suppressed. The enquiry contemplated is only confined to the provision contained in Rule 5 which have reference only to the allegations made in the application for leave to sue as pauper and not de hors the said allegations. It is not permissible to the Court to embark on an elaborate enquiry on the basis of the defence plea.
15. My above view finds support from the decision of the Apex Court in the case of Vijay Pratap v. Dukharam Nath, AIR 1962 SC 941 and the Madras High Court in D. Satyaval v. Kotaranga, AIR 1969 Mad 434 and Rq/endra v. Rajambal, AIR 1979 Mad 10 and Kerala High Court in Prabhakaran Nair v. K. P. Neelkantar Pillai, AIR 1988 Ker 267.
16. The Andhra Pradesh High Court in the case of Yamuna Bat v. M. Parasuramaiah, 1979 (2) Andhra Pradesh LT 385 and Ayipala v. Ayipala Rama Chandra, AIR 1970 AP 411 and the Patna High Court in (he case of Mohammad Abbas v. Tahera Khatoon, AIR 1974 Pat 324 and Noor Mohammad v. Jamit Alimad, 52 1C 688, it was held that an application to sue in forma pauperis could not be returned under Order VII, Rule 10 since such an application at that stage is not a suit. It becomes plaint only when it is registered. Therefore, an order returning the application to sue in forma pauperis for presentation in proper Court was wrong. Whereas a contrary view was taken by the Kerala High Court in Sreedharan v. Nanu, 1987 (2) Current Civil Case 73 (Ker), as well as the Madhya Pradesh High Court in Tej Kumar v. Subhas Chandra, 1989 (1) Current Civil Cases 605 (MP), differing from the Patna High Court's view taken in Gupteswar v. Chaturanan, AIR 1950 Pat 309 and following Channulal Seni v. Shama Rama Chandra. AIR Nag 259. The High Court of Kerala and Madhya Pradesh had taken the view by reason of Section 141 of the Code of Civil Procedure, the provision of the Code is applicable in a proceeding under Order XXXIII and, therefore, a plaint can be returned for being presented in proper Court If it attracts the mischief of Order 7 Rule 10. In as much as it relates to the question of jurisdiction.
17. The said view is with regard to the question of jurisdiction. But the same does not come within the Rule 5 which deals with the grounds of rejection of such an application. The return of the plaint does not imply that the Court can go into the question raised by the defence. It is only to be ascertained on the basis of the allegations made in the application itself as is contemplated under Order VII, Rule 10. If the allegations made in the application itself shows that it is not within the jurisdiction of the Court before which It is presented, then it would be open to the Court to return the same for presentation before the appropriate Court. A determination under Order VII, Rule 10 does not entitle the Court to embark upon an enquiry with regard to any matter except those contemplated within the scope and ambit of sub-rule (i) of Rule 10. But then the said Section can be resorted to at any stage of the suit. Therefore, it seems that the Patna High Court has taken the correct view. I am unable to persuade to agree with the reasoning given in the decision of the Kerala High Court and Madras High Court cited above. On the other hand, to my mind the reasoning of the Patna High Court is to be preferred. Inasmuch as though the application accompanies the statement of the claim, the same is not described in Order XXXIII as a plaint. Whereas under Rule 8 the application shall be deemed to be plaint in a suit when it is numbered and registered and when it proceeds as a suit in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay the court-fees or the fees payable on the service of process or in respect of the petition appointment of pleader or other proceeding connected with the suit. Thus, by legal fiction, the application to sue in forma pauperis becomes a plaint only when it is numbered and registered after the leave is granted. So long the leave is not granted, it remains an application for permission to sue in forma pauperis which contents the cause of the suit by reason of Rule 2 since it should contain all particulars which are required in regard to the plaint in suits. Had it been a plaint before the leave is granted in that event, it would have attracted the provision of Order VII. Rule 11 as well. Order XXXIII has given special status to an application to sue in forma pauperis which is not a plaint until the leave is granted and as such Order VII, Rule 11 cannot be attracted. If it is treated as a plaint even within the meaning of Order VII, Rule 10 in that event, there cannot be a different reason for treating the same as a plaint within the meaning of Order VII, Rule 11. The distinction that has been sought to be made cannot be sustained because of Rule 8. Order XXXIII is a complete Code in itself. By reason of Section 141, the other provision of the Code cannot be attracted in a proceeding under Order XXXIII for which a complete procedure has been laid down in Order XXXIII itself. In view of the provision contained in Rule 8, none of the provision contained in the Code could be attracted in respect of an application under Order XXXIII until the leave Is granted.
18. Inasmuch as Rule 1 prescribes as to who is an indigent person, Rule 1A provides for an enquiry by the Chief Ministerial staff of the Court, Rule 2 provides the contents of the application. Rule 3 provides for presentation thereof. Rule 4 provides for examination of the applicant. Rule 5 prescribes the ground on which an application should be rejected which includes identical provisions contemplated in Order VII, Rule 11 itself. Rule 6 provides for notice. Rule 7 prescribes the procedure for hearing. Rule 8 prescribes the procedure after the application is admitted. Rule 9 prescribes the power to withdraw such permission. Rule 9A empowers the Court to assign a pleader for conducting such suit on behalf of the indigent person. Rule 10 prescribes what would be the effect if the Indigent person succeeds. Rule 11 prescribes what would happen if he fails. Rule 11A provides as to the effect of abatement of a suit by an indigent person. Rule 11 empowers the State Government to apply to the Court for payment of court fees. Rule 13 provides that the matters covered under Rules 10, 11, 11A and 12 arising between the State Government and any party to a suit shall be deemed to be a question arising between the parties to the suit within the meaning of Section 47. Rule 14 provides mode of recovery of court-fees. Rule 15 bars subsequent application of like nature where such application as once refused, attracting the principles of res judicata. Rule 15A provides for grant of time for payment of court-fee. Rule 16 prescribes for cost. Rule 17 provides about the defence by an indigent person. White Rule 18 casts obligation on the State Government to provide free legal services to indigent person. Thus, Order XXXIII itself provides a scheme complete in itself and is a self contained Code excluding application of any other provision of the Code except as indicated in Order XXXIII.
19. Therefore, respectfully I am in disagreement with the view taken by the Kerala High Court and Madhya Pradesh High Court cited above.
20. Thus, the question whether the plaint should be returned in the absence of jurisdiction by the learned Civil Judge, cannot be raised at this stage on the basis of the alleged objection with regard to valuation. The question whether the plaint should be returned for presentation before the appropriate court can be raised after the plaint is registered. The said question remains open to be decided by the appropriate Court at appropriate stage.
21. Similarly, the question of appointment of guardian or representative of the minor also cannot be gone into within the scope and ambit of Order XXXIII which is completely beyond the scope of the said provision. Then again the mother is admittedly a Hindu governed by the Hindu Law. Therefore, under Hindu Minority and Guardianship Act, the mother is a natural guardian of a minor in the absence of father. But then the Apex Court had held in a recent decision that even during the lifetime of the father, the mother is also a guardian of a minor. Be that as it may, since the mother is a natural guardian unless she is removed, there is no scope of representation of the minor in a suit by the grandfather. Admittedly, the minor son is living with the widow mother, Mr. Sahai in his usual fairness submits that the mother has not yet remarried. It is only an apprehension that she may remarry. Even by virtue of remarriage, the mother cannot be said to lose her character as natural guardian of the minor. There is no provision that remarriage will disqualify her to continue as guardian of the minor. Be that as it may, until she remarries, this question also cannot be raised. Thus, there is no infirmity in the representation of the minor by the mother at this stage and the grandfather cannot claim to be appointed as guardian or represent the estate of the minor in a proceeding under Order XXXIII. Then again, this question is a question which cannot be gone into in a proceeding under Order XXXIII and neither the same can be raised as one of the grounds to refuse leave to sue as pauper. Both this grounds taken by Mr. Sahai appears to be wholly misconceived and untenable.
22. So far as the other questions raised with regard to the reference of the signature of hand writing expert is concerned, the learned courts below had held that the defendants have been attempting to delay the proceeding of the suit by various means and methods. This is a finding of fact with which this Court is not entitled to interfere. But then the question of payment of court-fee is a matter between the Stale and the plaintiff. The petitioner may point out the ingredients and materials for the purpose of enquiry by the Court. But the petitioner cannot claim an absolute right to oppose the leave unless it is established on behalf of the defendants to show that the plaintiff had sufficient means, in order to prove sufficient means, the defendants had relied upon the alleged receipt. The alleged signature on the alleged receipt has since been denied by the plaintiff. But the defendant did not take any step to call for an expert until the argument' is over or till 5th January, 1999. The learned court below had found that there were sufficient materials and evidence adduced in the matter. But then even if the appointment of hand writing expert is refused, the same does not entitle the defendant to challenge the question of leave to sue as pauper unless the State raises such objections. Then again, it was ornaments which were being alleged to have been returned. It has been held that wearing apparels and utensils which are necessary to leave are to be ignored for the purpose of deciding whether a person is pauper or not. So far as the women are concerned, some of the ornaments are also exempted for the consideration whether she is a pauper or not. Therefore, even if the receipt is proved, it has to be proved that those ornaments are not ornaments which could be ignored for the purpose of Order XXXIII. No case has since been made out by the parties to the extent that those ornaments are in excess of the ornaments which are necessary to be worn by a woman in India.
23. Be that as it may, in the present facts and circumstances of the case, I do not find any reason to interfere with the orders impugned since it has been held by both the courts below that in one or other manner the defendant had been obstructing the decision in the application under Order XXXIII, Rule 1 filed by the plaintiff. Since the payment of court-fee is a matter between the Slate and the plaintiff, the plaintiff cannot claim any absolute right to oppose the same. The leave to sue in forma pauperis means that a person may sue without payment of court-fees subject to payment of court-fee at a later point of time. As such, even if the leave is granted, the same would in no way prejudice the defendant. Inasmuch as by reason of grant of such leave, the defendant does not suffer any prejudice and none of his right is also affected by reason thereof. As such, he cannot claim any right to assail the impugned orders in the facts and circumstances of the case.
24. In such circumstances. I am not inclined to interfere with the order impugned. The writ petition therefore, fails and is, accordingly, dismissed. However, there will be no order as to costs.
25. The trial court is hereby directed to decide the question of grant of leave under Order XXXIII to sue as pauper to the plaintiff in accordance with law as early as possible preferably within a period of one month " from this date. The petitioner is directed to furnish a copy of this order to the learned court below within a period of two weeks from the date. In default, his objection to the application filed by the plaintiff under Order XXXIII shall stand rejected.