BIHARI SAHU Vs. MTSUDAMA KUER

JUDGEMENT

(1.) This is an application in revision against an order allowing what is usually called a pauper application giving to the party leave to sue in forma pauperis. It has been contended on behalf of the opposite party at the outset that in such a case revision does not lie, and in support of this contention reference has been made to Muhammad Ayab V/s. Muhammad Mahmud (1910) 32 All 623 and Sumatra Devi V/s. Hazari Lal . The Allahabad view however proceeds on the footing that Section 115, Civil P.C., dealing as it does with cases decided, does not apply to interlocutory orders. A contrary view has bean repeatedly taken by the Calcutta High Court, and that view has been adopted in this Court, as Chapman and Atkinson, JJ. said in Nauratan Lal V/s. Wilford Joseph Stephenson A.I.R.1922. Pat 859: It has however been the established practice of the Calcutta High Court to interfere with interlocutory orders, and that practice has been adopted by this Court.

(2.) Continuing his preliminary objection, Dr. Sen has cited Maratab Ali Shah v. Madan Lal A.I.R.1934. Lah 295 in support of the contention that the petitioners can have no possible grievance against the leave that has been given to the opposite party to proceed forma pauperis, the Government not having moved further in the matter. The discretion to be exercised by this Court in revision cannot however be crystallised in that manner and each case will have to be decided on its merits; nor is the view prevailing in the Lahore High Court as regards the application of Section 115, Civil P.C., the view adopted in Calcutta and followed in this Court. The preliminary objection on behalf of the opposite party must therefore be overruled. Coming now to the merits of the application before us, it is necessary to state that the suit was brought by a pardanashin widow to get rid of certain alienations made by her husband. The petitioners before us are the husband's agnates and it appears that they opposed the pauper application on the ground that the pauper applicant was possessed of sufficient means to pay the requisite court fees. They had originally taken the plea that the pauper applicant had entered into an agreement with third parties in respect of the subject-matter of the litigation, but this was given up at a later stage, as is stated in the judgment of the learned Subordinate Judge.

(3.) The lower Court, therefore proceeded to deal with what it called "the only point for determination in the proceeding", namely whether the applicant was possessed of sufficient means to pay the requisite court-fee. On this, the finding of the lower Court was against the petitioners before us. The learned Subordinate Judge then proceeded: As a last resource, it was argued that the applicant herself mentioned in her cross-examination that she did not know tee facts alleged in her plaint and she did not know what the disputed properties were mentioned in her plaint etc, and hence her application should be rejected.