THANU PILLAI Vs. NELLATHAYAMMAL

JUDGEMENT

(1.) I think the proper test in a case of this kind is laid down by Walsh, J., in Sundarathammal V/s. Paramaswami Asari 1933 Mad. 883 at p. 784. It is not, to my mind, so much a question whether they have this power in the abstract but whether in the concrete circumstances of this base they could succeed in raising anything substantial by exercising it.

(2.) I agree with these remarks. It is true that the petitioners have considerable properties. They are all heavily mortgaged - some with possession. Some of the mortgages are the subject of suits. In the circumstances, evidence is necessary to enable one to judge whether any money can be raised on the properties. The plaintiffs should be allowed to adduce the evidence and the defendants may by cross-examination show, if they can, that plaintiffs can and ought to raise money. If it is reasonable to hold that plaintiffs cannot raise the amount necessary for the suit, they will be allowed to sue as paupers, and conversely.

(3.) I set aside the order and direct the petition to be disposed of with reference to the above remarks, according to law. The costs of this petition will abide the result. If the Court finds the plaintiffs are not paupers, it has discretion to grant time to pay court-fees. That is the practice here and in every Court and is supported by Section 149, Criminal P.C.