K C IBRAHIMKUTTY MATHAR Vs. JOSEPHINE

JUDGEMENT

(1.) This revision petition is filed against the order of the court below granting permission to the plaintiff to sue in forma pauperis. The suit was to set aside a sale deed of the properties belonging to the Ernakulam Kadavumbhagom Jewish Synagogue. The plaintiff is a member of the congregation of the Synagogue, and according to the finding of the court below, he was not possessed of sufficient means in his individual capacity to pay the court fee and was also not in possession of any assets belonging to the Synagogue which would enable him to pay the court fee.

(2.) The application was opposed by the 4th counter petitioner. He contended that the application was not maintainable on the ground that the Jewish Synagogue which the plaintiff represented for the purpose of the suit was in possession of means to pay the court fee, that the petitioner, in his individual capacity was also possessed of sufficient means to pay the court fee, and that the suit was barred under S.92 of the Code of Civil Procedure.

(3.) The court below found that the plaintiff in his individual capacity was not possessed of means to pay the court fee. It also found that the Synagogue was possessed of sufficient properties which would enable it to pay the court fee, but it held that that would not preclude the plaintiff from instituting the suit as pauper. In arriving at this conclusion the court below also considered the scope of explanation (ii) to O.33 R.1 which states that where a plaintiff sues in a representative capacity the question of pauperism shall be determined with reference to the means possessed by him in such capacity. On the second question the court below found that S.92 of the Code of Civil Procedure was not a bar to the suit as the suit was not one for the administration of any trust. The court below therefore held that there was no substance in any of the objections raised by the 4th counter petitioner and allowed the application for permission to sue in forma pauperis. The 4th defendant has filed this revision petition challenging the validity of the order passed by the court below.