DHANANJAI PRASAD SINGH Vs. RAJKESHWAR SINGH

JUDGEMENT

(1.) This is a petition in revision against an order of the Subordinate Judge, first Court, Arrah, rejecting an application for permission to sue as a pauper. The applicant petitioner is a minor aged about eight or nine years. He seeks to sue as the adopted son of defendant 1 to set aside a deed of gift executed by defendant 1 and his wife, defendant 2 on 31 January 1943 in favour of their daughters, defendants 3 to 5. There is a prayer for confirmation of possession and, in the alternative, for recovery of possession over the properties covered by the deed of gift. The application has been rejected on two grounds, firstly, that according to the allegations in the petitioner's proposed plaint, the petitioner is in possession of the suit property, and the value of his share in it is considerably more than the court-fee payable on the plaint, and, secondly, that the petitioner's step-brother and natural father are helping him in the litigation, and are well able to pay the necessary sum.

(2.) The second ground given by the Subordinate Judge for rejecting the application is clearly wrong and no attempt has been made before us to support it. The case is not covered by Clause (e), of Rule 5 of Order 33, Civil P.C., but the Subordinate Judge has relied upon Jaikishun Dass V/s. Ram Narain Das A.I.R. 1939 Pat. 385 in support of the order passed by him. That was a case of an application for leave to appeal in forma pauperis, where there was a clear finding by the Court of first instance that the suit had really been promoted by certain persons who were using the plaintiff as a mere tool. Their Lordships held that the machinery of leave to sue or to appeal in forma pauperis is not given for the purpose of promoting the interest of champertors, and that one of the circumstances which should prevent the Court from granting permission is the fact, if brought to the notice of the Court, that the suit has been throughout and will, if the application is rejected, be financed by a person who is behind the scenes. In the present case, all that the Subordinate Judge found is that in previous litigation in the Land Registration Department relating to this property the petitioner was financed by his step-brother. Regarding the motives of the step-brother and the natural father in helping the petitioner, he says: Now the question is whether the applicant's stepbrother and natural father are helping him out of generous motives or with some object of self-interest. Though it is difficult to state by which of the two motives the applicant's natural father and step-brother were actuated to help him in the land registration cases 27 in number, I am sure, those persons will not leave the applicant in mid-stream even if the application be rejected. Clearly, on this finding, the case in A.I.R. 1939 Pat. 385 has no application.

(3.) I now come to the other ground upon which the Subordinate Judge has rested his order. The case is one within the first portion of the explanation to Order 33, Rule 1, Civil P.C. namely, that a person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in the suit it is now well settled that, unlike the second portion of this explanation, the first portion permits the subject-matter of the suit being taken into consideration in determining whether the applicant is a pauper. It does not follow, however, that the subject-matter of the suit must be taken into account in all cases. Two serious objections to this course have been pointed out very lucidly, if I may say so with great respect, by Meredith, J. in Mt. Ramnandi Kuer V/s. Rup Narain Singh A.I.R. 1942 Pat. 290. Firstly, where the plaintiff's interest in the property is in dispute, the Court, in order to come to a finding as to its present value, would have first to determine the claim upon the merits, in other words, to try the suit. Secondly, the effect of allowing the value of the claim in all cases to be included in the petitioner's means would be, in practice, that no one having a bona fide claim could ever be allowed at all to sue in forma pauperis, since whatever the value of the subject-matter of the suit the court-fees must only be a small proportion of that value.