U M USMAN Vs. MAYOR SIMON

JUDGEMENT

(1.) This is a petition for revising an order of the District Munsiff of Parur allowing an application to file a suit in forma pauperis. The counter Petitioner before this court is the person who seeks to file the suit in forma pauperis. He is a member of the congregation of a Jewish Synagogue at Parur, and the suit is for setting aside a sale deed executed by the trustee or administrator of the Synagogue in favour of the revision petitioner for one of the properties belonging to the Synagogue and recovery of possession of the said property for and on behalf of the Synagogue. According to the findings of the lower court, the counter petitioner is a pauper and is also not in possession c any assets belonging to the Synagogue which would enable him to pay the necessary court-fee,

(2.) The only ground on which the revision petitioner impugns the order of the lower court before ma is that, as the Synagogue is in possession of proprieties worth two or three lakhs of rupees and has the means to nay the necessary court-Tee, it is not competent for the counter petitioner to file a suit in forma pauperis on behalf of the Synagogue even though he himself is a pauper. Reliance was placed, in support of this contention on the decisions of the Madras High Court in Vellingiri Naickan v. Sree Patteswaraswami Devasthanam, AIR 1949 Mad 714 and T. K. Nair v. N. G. Amma, AIR 1954 Mad. 76. In the former case some of the residents of a village sought to file a suit in forma pauperis on behalf of all the villagers, and their application for leave was dismissed on the ground that their individual pauperism would not entitle them to the benefit of Order XXXIII, Code of Civil Procedure. In the second case, AIR 19o4 Mad 76, a junior member of a marumakkathayam thavazhi sought leave to the a suit in forma pauperis to recover possession of the property for and on behalf of his thavazhi, and his application for leave was dismissed on the ground that as the thavazhi on whose behalf he sought to file the suit was possessed of sufficient means to pay the necessary court-fee he was not entitled to sue in forma pauperis for and on behalf of it. Both these decisions were expressly based on Explanation 3 added by the Madras High Court to Order XXXIII, Rule 1, C. P.C. No explanation corresponding to Madras explanation 3 has been added by the Travancore-Cochin High Court to the explanation to Order XXXIII, Rule, 1, C.P.C., and in all the other jurisdictions where there are no explanations corresponding to the Madras explanation the decision have been uniform that, when, in a representative suit, the representative who filed the suit is not possessed of sufficient means belonging to the real plaintiff or plaintiffs on whose behalf he filed the suit, he is entitled to file the suit in forma pauperis,

(3.) In Nanda LAL Chattarjee v. Dwarka Nath Das, 11 Ind Cas 892, a case in which one of four Shebaits brought a suit against his three co-shebaits and an alienee of theirs for recovery of possession of endowed property for and on behalf of the trust the Calcutta High Court has said: