SM TRIPTI BASU Vs. K K GHOSE

JUDGEMENT

(1.) The applicants had made an application in the Court below under Order XXXIII of the Code of Civil Procedure for permission to sue in forma pauperis the opposite party defendants for recovery of damages from them, after service of a notice under Section 80 of the Code of Civil Procedure. The learned Subordinate Judge, after enquiring into that application, refused the permission and this application is directed against that.

(2.) The main question for consideration is whether the applicants have proved themselves to be eligible for the permission to sue as a pauper. They examined one witness who was cross examined by one of the opposite party defendants who had entered appearance in the Court below and had filed objection to the application of the intending plaintiffs for permission to sue as pauper. It came out of the cross-examination of the witness that one of the applicants, who is a married lady, had received some ornaments at the time of her marriage that took place seventeen years back, and the Court thought that, in absence of evidence that such ornaments are no longer in her possession one of the applicants should he deemed to be in possession of means out of which court-fee could be paid for the intended suit. The value of such ornaments was, as indicated in the suggestion offered in cross-examination, one thousand rupees. The witness was unable to say whether they were worth one hundred or one thousand rupees. A Hindu married lady cannot be divested of all ornaments as long as her husband is alive, and, according to the custom prevalent in the Hindu society, she must put on, at least, some ornaments, like the Mangal Sutra and the bangles. In that view of the matter, the evidence on record cannot be said to justify the conclusion of the Court below that one of the applicants was possessed of sufficient means to pay the court-fee. This finding is not based on evidence and, therefore, cannot be sustained.

(3.) The next objection raised in the Court below was that the father-in-law of applicant No. 2 (plaintiff No. 2) possessed some house in the town of Patna. I fail to see how that can amount to property in the hands of one of the applicants so as to be considered for the purpose of ascertaining her ability to pay the court-fee for the intended suit. The required court fee was over three thousand rupees.