BAI MOTI VELA Vs. BAI LADHI VELA

JUDGEMENT

(1.) This revision application is directed against the order of the learned Civil Judge (J. D.) Dhoraji, refusing leave to the Petitioner to sue in forma pauperism The suit was filed by the petitioner against her sisters and others for partition and possession of her share from the joint family properties belonging to the petitioner and respondents Nos. 1, 2 and 3. As the Petitioner was not in a Position to pay court-fees, she applied for leave to sue in forma pauperis The trial court after hearing the evidence of the petitioner refused permission as the trial court found that the petitioner was residing with her husband who has sufficient properties to pay court-fees in question This order of the trial court is the subject-matter of this revision before me.

(2.) At the time of hearing of this revision application Mr. P. K. Parekh the learned advocate appearing on behalf of the petitioner pointed out that the learned civil Judge has failed to exercise his Jurisdiction by inquiring into something not directed by the Legislature and has failed to make inquiry Which the Legislature directed him to do. In submission of Mr. Parekh the learned civil Judge was clearly in error in refusing leave on the ground that the petitioner's husband was the owner of sufficient properties and. therefore, the petitioner was in a Position to Pay the court-fees in question. On behalf of the respondents. Mr. S. M. Shah the learned advocate urged before me that this court should not in exercise of its revisional. jurisdiction under Section 115 of the Civil Procedure Code interfere with the finding of the trial Court. Mr. Shah has in support of his contention drawn my attention to the decision of Supreme Court in Shri M. L. Sethi v. Shri H. P. Kapur. (1972) 2 SCC 427 = ( AIR 1972 SC 2379). where the Supreme Court was concerned with an order made by the High Court remanding the matter to the trial court for Purposes of holding a fresh inquiry into the question of Pauperism after allowing certain applications made by the pauper for discovery of certain documents. His Lordship Methew J. speaking for the Court referred to the various decisions of the Supreme Court and tried to analyse and distinguish between the jurisdictional fact and non-Jurisdictional fact. In that connection a reference was made to Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147. The paragraphs from the judgments of Lord Reid and Lord Pearce were quoted and which read as under:-

(3.) In the same case, Lord Pearce said:-