MITHAI LAL Vs. JAGAN

JUDGEMENT

(1.) This is an application in revision from an order refusing to grant leave to the applicant to sue as a pauper. The applicant's own case in the plaint was that he was entitled to a large property as a member of the joint Hindu family which yielded a large income, but that the same had been denied to him. The learned Judge was not satisfied that the applicant was not able to raise money on the security of his share in the joint property so as to pay the prescribed court, fee and has remarked that the applicant did not prove that he was not able to raise any money on the security of his share claimed in the suit by partition, (and) as such has not the means to pay the fee prescribed.

(2.) In revision it is contended that the learned Judge was quite wrong in taking into account the subject matter in dispute, because the property must always be excluded when the question has to be considered whether the applicant is a pauper or not. Great reliance is placed on Balagauri Bai V/s. Moti Lal A.I.R. 1923 Bom. 247, in which case the plaintiff who had applied for leave to sue in forma pauperis was seeking to recover in her suit certain ornaments and maintenance allowance; the defendant actually produced in Court the ornaments and cash which, he admitted, belonged to the plaintiff and which was far in excess of the sum required for the payment of the court-fee. The Court below naturally took into consideration this fact and held that the plaintiff was not entitled to sue as a pauper and that she was possessed with means to pay the court-fee. On appeal the learned Judges of the Bombay High Court came to the conclusion that inasmuch as the plaintiff had not actually received the ornaments and cash, she was not possessed of sufficient means to pay the fees, although the ornaments and cash had been deposited in court and had been admitted by the defendant to belong to the plaintiff. We regret we are unable to agree with that decision. The Explanation attached to Order 33, Rule 1, Civil P.C., consists of two distinct parts, the first relating to the case where a fee is prescribed by law for the plaint and the second to a case where no such fee is prescribed. In the former case the plaintiff would be a pauper when he is not "possessed of sufficient means to enable him to pay the fee"; while in the latter case he would be a pauper when he is not entitled to property worth Rs. 100 other than his necessary wearing apparel and the subject matter of the suit.

(3.) It is therefore obvious that the Legislature has advisedly excluded the subject matter of the suit in the second case, but has refrained from excluding it in the former case. It is therefore not possible to hold that in cases coming in the first category the subject matter of the suit must always and of necessity be excluded from consideration. Whether it should or should not be excluded is a matter for the consideration of the Court which has to decide the question whether the plaintiff is or is not possessed of sufficient means to enable him to pay the fee. The words used are not that the plaintiff should not be possessed of sufficient property to enable him to pay the fee. If such words had occurred, it might well have been argued that it must be established that the plaintiff was in actual physical possession of some property which would yield the necessary amount. But the words used are "possessed of sufficient means to enable him to pay the fee", which in our opinion merely mean that he is able to pay the fee. To lay down that even where the plaintiff can easily obtain possession of ornaments and cash lying to his credit in Court, he is not possessed of sufficient means because he has not yet taken delivery of such ornaments and cash would, in our opinion, be contrary to the intention of the Legislature.