CHHAIL BEHARI LAL Vs. PHOOL CHAND

JUDGEMENT

(1.) This is a plaintiff's application under Section 115, C. P. C. against an order of the learned Civil Judge, Aligarh rejecting their application to sue in forma pauperis. The plaintiffs filed a suit for a declaration that certain mortgage deeds executed by their ancestors were not for legal necessity and invalid and also for cancellation of the decrees obtained by the defendants on the basis of the impugned mortgages. There was also a prayer for an injunction restraining the defedants from taking possession of the plaintiff's property. The plaintiffs made an application, under Order 33, Rule 1, C. P. C., for permission to institute the suit as paupers. They alleged that they were not possessed of sufficient means to enable them to pay the prescribed court-fee Notice was issued to the Government Pleader and to the defendants. After hearing the evidence of the plaintiffs and the first defendant, the learned Civil Judge took the view that the plaintiffs are possessed of sufficient means to pay the court-fee and rejected the application. Aggrieved by this order the plaintiffs have filed this application.

(2.) I have heard learned counsel for both sides and I am of the opinion that the application should be allowed. The learned Judge has given detailed reasons for disbelieving the plaintiffs. But he appears to have ignored completely the statement made by the Government Pleader on behalf of the State that it did not oppose the plaintiff's allegation of poverty (Muflasi per atraz nahin hai). In my opinion, this was not a correct approach to the question whether the plaintiffs should be allowed to sue as paupers. Under Rule 7 of Order 33, the Court, after hearing the evidence of the parties and hearing their arguments on the question whether the applicant is subject to any prohibitions, has to make its decision whether to allow or refuse to allow an applicant to sue as a pauper.

(3.) The party vitally concerned in the result of application by the plaintiffs for permission to sue in forma pauperis is the State which stands to lose revenue in the event of permission being granted. It is true that the defendant is also entitled under Order 33, Rule 6 to oppose the application and lead evidence to disprove plaintiffs' allegation of pauperism. But, in the assessment of the evidence, and consideration of the other relevant circumstances, the starting point for the Court should be the statement of the State. It is well known and was conceded by both counsel that on receiving notice of an application under Order 33, Rule 6, Government initiate an enquiry through the Collector into, the financial condition of the applicant. It was also conceded that the decision not to oppose the application is taken only if the result of the enquiry confirms the plaintifFs allegation that he is a pauper. It was conceded on behalf of the defendant respondents that if) the present case, too, the routine procedure must have been followed and an enquiry made by the Collector and that the Government Pleader's statement was based on the result of that enquiry. But the learned Judge did not even refer to the statement of the State in his order and ignored it completely. This appears to me an incorrect approach.