NASARULLAH KHAN Vs. HUSSAIN KHAN AND ORS.

JUDGEMENT

(1.) THIS Civil Revision is directed against on order dismissing on application under Order 33, Rule 1 Code of Civil Procedure.

(2.) THE Petitioner presented a 'plaint in the ' Court of the Subordinate Judge of Bolangir for partition of the suit properties are for recovery of a share therein, with a prayer for leave to sue in forma pauperis. The Court -fee payable on the plaint was assessed at Rs. 38425. It was alleged that the Petitioner was a pauper and had no other property except his wearing clothes worth Rs. 16/ - as described in Schedule 'J ' of the petition under Order 33 Rule 1, Code of Civil Procedure on the date of presentation of the petition, the next friend of the minor Petitioner made on initial statement on solemn affirmation in terms of Order 33 Rule 5, Code of Civil Procedure. Thereafter notices were issued to the opp. parties and the Government. Some of the opposite parties filed counters contending that the Petitioner has got sufficient means to pay the required Court -fees. The Government did not contest the pauperism of the Petitioner.

(3.) APPARENTLY the learned Subordinate Judge has overlooked the initial statement of p.w. 1 made in terms of Order 33, Rule 5, Code of Civil Procedure on the date of presentation of the petition. In that statement it was clearly mentioned that the Petitioner had no means to pay the Court -fee required on the plaint and that he was possessed of some wearing clothes only worth Rs. 16/ -. The Court was satisfied that the requirement of Order 33, Rule 5, Code of Civil Procedure were fulfilled and it is after such satisfaction that notices were issued to the opposite parties and the Government. The legal position has been made dear in Sibasankar Tiadi v. Koli Tiahadhiani : 29 (1963) C.L.T. 681, that Rule 6 of Order 33, Code of Civil Procedure which provides for issue of notice to the opp. party and the Government would not come into operation unless the Court is satisfied that the Petitioner, fulfills the requirement of Rule 5. In their counters, the opposite parties vaguely alleged that the Petitioner was possessed of sufficient means to pay the required Court -fees. They did not give any description of the property which the Petitioner is alleged to be possessed of they did not also specifically allege that the Petitioner has any other source of income.. Neither p.w. 1 was seriously cross -examined nor any evidence was produced by the opposite parties in support of their contentions. Thus they failed to bring to the notice of the Court that the Petitioner did not satisfy the requirements of Order 33, Rule 5, Code of Civil Procedure.