Patna High Court
Asha Devi vs Devi Dayal And Anr. on 22 September, 1960
Equivalent citations: AIR1961PAT116, AIR 1961 PATNA 116
ORDER Raj Kishore Prasad, J.
1. This application in revision, by the petitioner, is under Section 115, Civil P. C., which will hereinafter be referred to as 'the Code', against the order of the Court below refusing her application for permission to sue in forma pauperis.
2. The petitioner made an application, under Order 33, Rule 1 of the Code, accompanied by the plaint of her proposed suit, in which she claimed declaration of her title to and recovery of possession of the suit lands. The total value of the suit was Rs. 21,000/- on which the court-fee payable was Rs. 1810-25nP. In her petition, she declared that she was a pauper and all the articles of property she was in possession of were worth only Rs. 38-75 nP.
3. The application was opposed simply on the ground that the petitioner was not a pauper, as she had the means to pay the requisite court-lee.
4. The learned Subordinate Judge, en a consideration of the evidence, held that there was a rehan in favour of the applicant, which was redeemed last year, whereby she got Rs. 200; that there was another ijara by one Bhagwat in favour of her husband, which had not been redeemed as yet, but the ijara property was in possession of the mortgagor, who paid the usufruct to her; and that she was possessed of some ornaments also. Without, however, finding the value of the above property or ornaments, in order to dispose of the question, whether she had the means to pay the requisite court-fee, amounting to Rs. 1810-25 nP., be dismissed her application. Against that order, the present rule has been obtained by her.
5. This rule involves the construction of the Explanation to Rule 1, of Order 33, of the Code which is to the following effect:
"Explanation : 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 such suit, or where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing-apparel and the subject-matter of the suit."
A plaintiff suing in a civil Court must pay the court-fee prescribed by law for the plaint and subsequent proceedings in the suit. But a person may be too poor to pay the court-fee, and the object of Order 33 is to enable such person to bring and prosecute suits without payment of court-fee. In an enquiry under Order 33, Rule. 1, therefore, the Court should always address itself to the ascertainment of the applicant's capacity to raise the necessary court-fee.
The words "is not possessed of" occurring in the Explanation to Rule 1 of Order 33, of the Code, refer to property over which the applicant has actual control. What is contemplated by these words is not possession of property, but sufficient means, that is capacity to raise money to pay the requisite court-fee, and it is incumbent on the court to come to a finding on that point. The possession that is spoken of in the first portion of the Explanation is not possession of property, but of "Sufficient means", and, as such, what the Court is concerned to enquire into is not actual possession of property, but capacity to raise the money necessary to pay the required court-fee.
The question, whether the plaintiff is a pauper or not, turns upon the circumstances of each case. But the test, in such a case, is not whether the petitioner has the power of raising money in the abstract, but whether in the concrete circumstances of the case he can succeed in raising anything substantial by exercising it. Where, therefore, the Court holds that the applicant has got property, but does not give a finding on the value of the property, the Court does not properly exercise jurisdiction in holding that the applicant should not be permitted to sue in forma pauperis; Mt. Bibi Khudai Jatul Kubra v. Mt, Bhagalan, AIR 1950 Pat 364, in which Dhananjai Prasad Singh v. Rajkeshwar Singh, AIR 1947 Pat 34: ILR 25 Pat 318; Ramanuja Ayyangar v. Gopalan, AIR 1934 Mad 561, and Sundarathammal v. Para-maswami Asari, AIR 1933 Mad 883, were followed,
6. In a case like the present, the applicant's statement that she has no property other than that which she had mentioned in her application, could be proved by other evidence, and, in disallowing her prayer for permission to sue in forma pauperis it was necessary for the Court to find clearly whether such property, as might be proved to belong to her, was sufficient to pay the requisite court fee, as contemplated by the Explanation, to Rule 1, of Order 33, of the Code, The manner in which the learned Subordinate Judge has dealt with the case shows that he did not consider the necessity of ascertaining cither the exact amount of court-fee payable by the petitioner to sue in the ordinary course or the value of the property which was alleged to belong to her, over and above the subject-matter of the suit. No issue was framed regarding the value of the properties alleged to have been in her possession and whether they were adequate to divest her of the remedy of suing in forma pauperis which, on proof of pauperism, the law would have awarded her.
7. It would, further, appear from the order complained of that the learned Subordinate Judge has taken into consideration the ornaments of the petitioner without finding what the value thereof was. On the question, whether ornaments came within the meaning of the words "necessary wearing apparel", occurring in the second portion of the explanation to Rule 1, of Order 33, of the Code, and, whether they can be taken into consideration in deciding the question of sufficient means of the applicant to pay the fee prescribed by law, has been considered by some High Courts; but they do not appear to be unanimous.
8. A Division Bench of the Calcutta High Court in Sm. Mabia Khatun v. Sheikh Satkari, AIR 1927 Cal 309 held that ornaments, which a woman ordinarily wears, are of the same class of personal property as her wearing apparel and cannot be taken into consideration in determining whether she has sufficient means to pay the Court-fees.
9. The above case, however, was not followed by Harrison, J., sitting singly, of the Lahore High Court, in Lal Chand v. Mt. Pisto, AIR 1928 Lah 271, who held that the very use of the word "means" in the Explanation to Rule 1 of Order 63 of the Code, showed that it is intended to cover and include all forms of realisable assets which can be converted into cash and as such can be used for financing the litigation.
9a. The above two cases were considered by James, J., sitting singly, of this Court, in Mohammad Wasi Ahmed v. Mt. Bibi Jamila Khatoon, AIR 1939 Patna 93, and, His Lordship observed, which is of course, in the nature of an obiter, that ".....I doubt whether I should find myself able to hold that a certain amount of metal about a woman's person is to be classed as necessary wearing apparel when she is posing as a pauper."
A Division Bench of the Allahabad High Court, in Mt. Kiran Devi v. Madan Lal, AIR 1949 All 631, also dissented from the above mentioned Calcutta view, and, they held that, although the observations in that case were obiter dicta, yet they were not prepared to follow that decision. Their Lordships, therefore, held that ornaments in possession of a woman cannot be considered as part of wearing apparel and can be taken into consideration in finding out whether she has the means to pay the court-fee.
10. A Division Bench of the Orissa High Court, however, in Nishamoni Devi v. Joy Krishna Panda, AIR 1950 Orissa 234 held that ornaments given to a girl at the time of her marriage are not such as can be parted with by a Hindu woman, who has her husband alive, and, therefore, ornaments which are worn daily by a Brahmin Hindu woman constitute as such her wearing apparel.
11. On a consideration of the above authorities, in my opinion, the true meaning of the expression "necessary wearing apparel", occurring in the second portion of the Explanation, to Rule 1, of Order 33, of the Code, is, that it includes only those ornaments, which are, and, which must be, and, which are, absolutely, necessary to be worn by a married woman, and, kept on her person always, according to her custom, as long as her husband is alive; but, ornaments, given to her at the time of her marriage, which are being kept as jewellery, or, which are not constantly used, and, which, according to her custom, are not necessary also to be worn daily as a sign of her husband being alive, cannot be considered to be included within the words "necessary wearing apparel", and, therefore, such ornaments can be taken into consideration by the Court in deciding the question, whether the applicant, who has applied For being permitted to sue in forma pauperis, is possessed of "sufficient means" to enable her to pay the court-fee prescribed by the law within the meaning of the first portion of the Explanation, to Rule 1, of Order 33, of the Code.
12. In the present case, admittedly, the petitioner is a widow, and, therefore, if she was possessed of any ornaments, certainly they could be taken into consideration for deciding the question of her sufficiency of means to pay the requisite court-fee. The judgment of the learned Subordinate Judge, however, does not even specify the ornaments which the petitioner is possessed of. Unfortunately, the learned Subordinate Judge has not found as to what those ornaments were and what was their value and if the value thereof was sufficient to enable her to pay the requisite court-fee.
13. In my opinion, therefore, although the learned Subordinate Judge has not acted illegally in taking into consideration the ornaments of the petitioner, yet he has certainly acted with material irregularity and illegality in the exercise of his jurisdiction in not finding out, firstly, the different ornaments, which she is possessed of, and, secondly, the value thereof, because, in the absence of any finding regarding the value of the ornaments possessed by the lady, it is impossible to hold that the learned Subordinate Judge properly exercised his jurisdiction in holding that the applicant should not be permitted to sue in forma pauperis.
I would, accordingly, set aside the order of the learned Subordinate Judge and remit the case to him for being reheard. If necessary, and, if asked for, the parties will be permitted to adduce fresh evidence to the matter, and, after taking the evidence on the record and such further evidence, if any, adduced by the parties, the learned Subordinate Judge should decide afresh, whether the applicant has sufficient means to enable her to pay the required fee within the meaning of the Explanation to Rule 1, of Order 33 of the Code.
14. In the result, the application succeeds and the rule is made absolute; but, in the circumstances of the case, there will be no order for costs.