M. L. SETHI versus R.P. KAPUR

Citation: [1973] 1 S.C.R. 697 · Decided: 19-07-1972 · Supreme Court of India · Bench: P. JAGANMOHAN REDDY · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
M. L. SETID 
v. 
R.P.KAPUR 
July 19, 1972 
[P. JAGANMOHAN REDDY AND K. K. MATHEW, JJ.J 
697 
Code of Civil Procedure (Act 5 of 1908), s. 115 and 0.33, rr. 6 and 
1-Jurisaictional error, lvhat is-Por11er of Cour. to order discovery 
of 
docu111ents relating to pauperis1n. 
The respondent filed an application for permission to sue in forma 
pauperis against the appellant, and notice of the petition was given to the 
State Government and the appellant under 0.33, r. 6, CPC. The Go-
vernment and the appellant filed objections, that the respondent was not 
a pauper. The appellant also filed an application for discovery of docu-
ments from the respondent for proving that the respondent. was not a 
pauper. The Court passed an order directiag the respondent to discover 
on affidavit the documents relating to bank accounts of the respondent 
for a specified period. 
The respondent did nor file the affidavit on the 
prescribed date but filed applications fm· time which were dismissed by 
the Court and the Court thereafter dismissed the application for per-
mission to sue in forma pauperis as there was no evidence to show that 
the respondent was a pauper and directed the respondent tO 
pay 
the 
court-fees. 
The respondent challenged the orders directing discovery of 
documents and dismissin2 the application for permission to sue in forma 
paupcris in revision before the High Court.. 
The High Court set a.side 
the two orders holding that; (l) Since the proceedings under 0.33, rr. 6 
and 7 are summary, discovery should not have been ordered : (2) the docu-
ments of which discovery was sought were not specified in the application 
of the aopellant, (3) the inquiry under 0.33, rr. 6 and 7 was a matter 
between -the respondent and the State Government and discovery 
and 
inspection at the instance of a private party like the appellant should not 
have been ordered;(4) the trial court acted with material irregularity as 
it did not consider the question of the necessity for discovery of the docu-
ments or the relevance of the documents of which discovery was sought; 
(5) the trial court ovorlooked the right of the respondents to claim pri-
vilege; and (6) the trial court, rejected the application to sue in forma 
pauperis for statistical purposes. 
Allowing the appeal to this Court, 
HELD : (!) The suit commences from the moment an application for 
permission to .. s_ue in forma paupers as required by 0.33 C.P.C.·is presented 
and the prov!s1.ops of Order 1, r. 10, of 0.9 and 0.39 would apply to i~ 
If th.at be so, there is no reason why the provisions of 0.11 r. 12 relating 
to discovery should not also apply to proceedings under 0.33. [701B-Cl 
Vijay Pratap Singh v, Dukh Haran Nath Singh and Anr., [1962] S.C.R. 
Supp. 2, 675, followed. 
. 
(2) When the Court m~kes order for discovery the opposite party 
is. bound to ma]\e an aflidaVIt of documents and if he fails to do so he 
will be subi.ect to the penalties specified in 0.11, r. 21. An affidavit of 
ff 
docum~nts shall set forth. all the documents which are or have been in his 
possession or power ~elating. to the matter in question in the proceedings. 
As to documents which are not but have been in his possession or power 
he must state what has become of them in order that the other party may 
10-Ll52SupCl/73 
698 
SUPREME COURT REPORTS 
[1973] 1 ~('.kt. 
be able to get their production. 
Therefore, unless the party 
seeking 
discovery know• what are the documents in th~ possession of c\istody of 
the other ·party which would throw light upon the matter in controversy 
it is not possi_ble for him to ask for discovery and inspection of specific 
documents., In the circumstances therefore the order was as specific as it 
cou1d be.. [702C-F] 
( 3) Order 3 3, r. 6 provides that if the Court does not reject the 
application under r. 5 notice shall be given to the opposite party and the 
Government pJeader for receh.ing such evidence as the .. applicant may 
adduce in proof of pauperism ·and for hearing any evidence in disproof 
thereof. Also under 0.33, r. 9 it is open to the Court on the application 
of the defendant to disappear the plaintiff on the grounds specified there-
in., one of which is, that his means are such that he should Tiot fie allowed 
to continue to sue as a pauper. Since an immunity from litigation unless 
the requisite court fee is paid by the plaintijJ is a valuable right for the 
defendant, the inquiry into pauperism is not a matter exc

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