J E L CHURCH Vs. SAMUEL SANTHI KUMAR

JUDGEMENT

(1.) These applications under S.115, Civil P.C. are directed against the orders passed by the Subordinate Judge, Jeypore rejecting the application of the petitioner to dispauper the plaintiff-opposite party No. 1. The parties in the two cases are the same and the cases involve similar questions of facts and law and the impugned orders are similar in nature. At hearing one set of argument has been advanced and this order will govern both the cases.

(2.) Civil Revision No. 703 of 1983 arises out of M.S.No. 14 of 1981 filed by the opposite party No. 1 initially claiming Rs. 9,893/- against the petitioner and the opposite party No. 2 towards cost of his movables which were allegedly removed by the latter. During pendency of the suit movables worth of Rs. 4,434/- were returned to the plaintiff-opposite party No. 1. Thereafter, he reduced the claim in the suit to Rs. 5,459/-. The court-fees payable on the plaint is Rs. 659.25. Civil Revision No. 704 of 1983 relates to Title Suit No. 7 of 1981 filed by the Opposite Party No. 1 initially for a sum of Rs. 55,800/-against the petitioner and the Opposite Party No. 2 towards his arrear dues. During pendency of the suit, the plaintiff-opposite party No. 1 received a sum of Rs. 7,800/- in cash towards his provident fund dues and salary for the month of August, 1976 from the petitioner-defendant No. 1. Thereafter, the plaintiff reduced his claim in the suit to Rs. 48,000/-. The court-fees payable on the plaint is Rs. 2,789.25 paise. In both the suits, application filed by the Opposite Party No. 1 for permission to file the suit as an indigent person was dismissed by the trial court. On appeal order of the trial court was reversed and permission was accorded to the applicant to pursue the suit as indigent person. The petitioner filed an application in each of the suits to dispauper the opposite party on the ground that during pendency of the suit he has come to possess sufficient means to pay the requisite court-fees. The plaintiff-opposite party No. 1 in his objection to the application under O.33, R.9 Civil P.C. stated inter alia that the sums received by him were small parts of the suit claims. Those sums were spent by him immediately after receiving them as he was in dire financial state after having been driven out from the service by the opposite party. The facts stated above are not in dispute.

(3.) The trial court on a consideration of the matter rejected the application filed by the petitioner holding that the sums received by the opposite party during pendency of the suit were in the nature of subsistence allowance and could not be taken into consideration for dispaupering the plaintiff-opposite party No. 1.