FAKIR MOHEBUBSHAH AHMEDSHAH Vs. BAI CHANDBU

JUDGEMENT

(1.) A very interesting question as to the interpretation of Order 33 Rule 1 of the Code of Civil Procedure has been raised in this petition. Opponent No. 1 Bai Chandbu made an application for permission to sue as a pauper. This application was presented on 5th April 1968. A notice was issued upon the petitioner respondent No. 2 and the District Government Pleader fixing the day for receiving evidence as the applicant may adduce in proof of her pauperism and for hearing any evidence which may be adduced in disproof thereof as provided by Order-33 Rule 6. The application was taken up for hearing on 2nd April 1970. When the applicant tendered evidence in proof of her pauperism a question was asked in her cross examination on behalf of the opponent that her husband died leaving some property and in answer to this question the applicant Bai Chandbu stated that her husband died about six months back leaving the house and lands bearing S. Nos. 281 372 and 43/2. It was then submitted to the learned Judge inquiring in the claim of pauperism by the applicant that she had a share in the property left by her husband and therefore she was possessed of sufficient means which would enable her to pay court-fees prescribed by law for the plaint and therefore her application for permission to sue as a pauper should be rejected. The learned Judge rejected this contention observing that while making an inquiry under Order 33 Rule 7 the inquiry has to be made with reference to the date on which an application for permission to sue as a pauper is presented and at that stage it would not be relevant to inquire about the subsequent events which if taken into consideration may have a bearing on the question whether the applicant continues to be a pauper or not. Thus observing the learned Judge granted the application under Rule 8. Original defendant No. 1 has challenged the correctness of this order in this revision application.

(2.) The question that arises for determination is as to which is the relevant date with reference to which the inquiry into the status of the applicant who has made an application to sue as a pauper should be made. In other words while making an inquiry under Order 33 Rule 7 to ascertain whether the applicant who has made an application for permission to sue as a pauper is a pauper or not the circumstances bearing upon the subject as in existence on the date of the application should alone be taken into consideration or whether some subsequent events which may have a bearing on the subject may also be taken into consideration before granting permission to sue as a pauper. There is Explanation appended to Rule 1 which is material. It reads as under :-

(3.) Having examined the scheme of Order 33 I may briefly state the circumstances in which the question now posed arises in this proceeding. Respondent No. 1 Bai Chandbu filed an application being Misc. Application No. 2 of 1968 in the court of the Civil Judge (junior Division) Lunavada under Order 33 Rule 2 praying for a permission to sue as a pauper. Se stated that on proper computation of the court-fees looking to the valuationplaced on the relief claimed in the suit she would be liable to pay Rs. 342/as court-fees. She has further stated that she is not possessed of sufficient means to pay court-fees prescribed by law and therefore she should be permitted to sue as a pauper. After the notice was issued upon the defendant and the District Government pleader when the inquiry was held under Rule 7 in April 1970 a question was asked in the cross-examination of the applicant Bai Chandbu that her husband had died leaving property to her to which she replied thather husband died about six month back leaving a house and three fields. On eliciting this answer an argument was advanced on behalf of the defendants in the application that she must have some share in the property left by her husband and therefore she is now possessed of sufficient means to pay court-fees. Now it is admitted that on the day on which Bai Chandbu made an application for permission to sue as a pauper that is on 5th April 1968 her husband was alive. Parties being Mohamedans the wife had no interest in the property of the husband in the life time of the husband. Bai Chandbu had further stated that she had no property exceeding Rs. one hundred in value including her wearing apparels. If the inquiry as to the means of Bai Chandbu was made keeping in view the relevant date namely date on which she presented the application there is no controversy that she was not possessed of sufficient means to enable her the pay court-fees prescribed by law. But it was contended that before the inquiry could be completed under Rule 7 an event has occurred which if properly evaluated would show that she has now some property and if that aspect is taken into consideration her contention that she was not possessed of sufficient means to enable her to pay the prescribed court-fees cannot be accepted and therefore she should not be permitted to sue as a pauper.