LATIF-UN-NISSA Vs. KHAIR-UN-NISSA

JUDGEMENT

(1.) CIVIL Revision No. 474 of 1946 filed by the legal representatives of Mohammad Baksh came up before a Bench of this Court on 14-9-1950, and, while my brother Agarwala, J. was of the opinion that the applicants could continue the proceedings if they were prepared to pay the court-fee, or if they could allege and establish that they were paupers and were not able to pay the court-fee, the other learned Judge, Pearey Lal Bhar-gava J. took a contrary view.

(2.) BY reason of the difference of opinion two questions of law were formulated and referred to a larger Bench for decision. The points are:

(3.) THE facts of the case so far as they are necessary for the decision of the points raised are that mohammad Baksh and Haidar Baksh filed an application under Order 33 of the Code of Civil procedure for permission to file a suit in 'forma pauperis'. They claimed that they were brothers and were the legal representatives and heirs of Haji Ahmad Baksh, who had died on 11-12-1928 and were entitled to his property which was to the wrongful possession of the opposite party. This application was rejected by the lower Court on a finding that Mohammad Baksh and Haider baksh were not paupers. An application in revision was filed in this Court and during the pendency of the application Mohammad Baksh died. On the death of Mohammad Baksh his legal representatives Latif-un-Nissa and others applied that they be brought on the record and allowed to continue the civil revision. This application was granted without any objection and on 27-4-1944, the revision application came up for hearing. The application was allowed and the following order was passed: