RADHE SHYAM PRASAD Vs. SHIV DULARI DEVI

JUDGEMENT

(1.) This miscellaneous appeal arises out of an order dt. 2-8-1985 passed by the Subordinate Judge, Sasaram in Miscellaneous Judicial Case No. 131 of 1981, whereby and whereunder, the said learned Court dismissed an application filed on behalf of the applicant praying for leave of the Court to sue in forma pauperis.

(2.) In his application under O.33, R.1 of the Civil P.C., the appellant stated that he is an indigent person and possessed of only wearing apparel and utensils worth Rs.117/-. The respondent in its rejoinder stated that the applicant was a man of sufficient means and he can pay court-fees easily.

(3.) During the course of evidence, it was brought on record that there are certain properties in the district of Ballia which stood in the names of Jaishanker Prasad, (the applicant) and one Kamleshwar Prasad son of Kamta Prasad. It is also admitted that the appellant in his application under O.33, R.1 of the Civil P.C. did not mention the said fact. Before the learned Court below, the applicant examined seven witnesses including himself whereas the opposite parties examined three witnesses. The witnesses examined on behalf of the applicant stated that he had no means to pay court-fees. The appellant examined himself as A.W. 7. In his evidence the applicant completely disowned the ownership of the said properties. The learned Court below has rejected the said application simply on the ground that the appellant has suppressed the fact that some other properties also stand in his name. The learned Court below after referring to various decisions of this Court and other High Courts came to the conclusion that the applicant in his application under O.33, R.1 of the Civil P.C. should have mentioned the properties, which the applicant held at the time of the institution of the suit and omission to do the same, would disentitle him from an order granting leave to him to sue in forma pauperis. There cannot be any dispute with regard to the aforementioned proposition. However, it should be borne in mind that a suppression should not only be deliberate and mala fide but the Court also must come to a finding that the properties in the possession of the applicant were sufficient in order to enable him to pay court-fees. It is incumbent upon the Court to come to a finding that the indigent has sufficient means to pay court-fees. As a logical corollary the Court, therefore, must also come to a finding that he has properties which can be disposed of. In other words the properties are such which are transferable so as to enable the applicant to raise sufficient funds for the purpose of payment of court fees.