Patna High Court
Sri Ramjee And Ors. vs Bishwanath Pd. Sah And Ors. on 6 September, 1977
Equivalent citations: AIR1978PAT129, AIR 1978 PATNA 129
ORDER Hari Lal Agarwal, J.
1. This application in revision is directed against the order of the learned Subordinate Judge, Muzaffarpur, refusing to grant permission to the petitioners-applicants to sue the defendants-opposite party in forma pauperis under the provisions of Order 33 of the Civil P. C.
2. The petitioners intend to institute a title suit against the defendants through their next friend, one Shri Hari Shankar Prasad, inter alia for the removal of the defendants first party, the shebaits of the petitioner deities and for appointment of new shebaits in their place, for framing a scheme for the proper management of the properties of the petitioners and for rendition of accounts of the income and expenditure by the defendants first party.
3. In the plaint, a copy of which was annexed to the application in question, the petitioners have stated that the defendants first party were acting in violation of the terms of the deed of trust, were misappropriating the income of the properties of the petitioners and were not paying anything to them.
4. A report was called for from the Deputy Collector, Incharge Legal Section, Muzaffarpur, as to the pauperism of these petitioners. The report dated 10-9-1963 of the District Kanoongo who made local enquiry, shows that the petitioners were in possession of some move-able articles only valued at Rs. 118- approximately,
5. The learned Subordinate Judge has refused permission to sue in forma pauperis to the petitioners on three grounds, namely, (i) Hari Shankar Pra-sad, the next friend of the petitioners, had instituted Title Suit No. 60 of 1967 previously in forma pauperis and allowed the same to be dismissed when called upon to pay the court-fee and therefore, no fresh permission could be granted to him; (ii) Hari Shankar Prasad. the next friend of the petitioners, was himself in possession of sufficient means and could pay the court-fee; and (iii) the petitioners are themselves possessed of sufficient properties which yield enough income and are capable of paying the court-fee.
6. I have heard learned counsel for both sides, and having examined the facts and circumstances of the case, am satisfied that the order passed by the learned Subordinate Judge is wholly erroneous and must be set aside as none of the grounds given for refusing the prayer of the petitioners for grant of their application to sue the defendants-opposite party in forma pauperis is valid in law.
7. The first ground that Hari Sihankar Prasad had previously instituted a Title Suit No. 60 of 1967 for the same relief could hardlv be a reason for rejecting the prayer of the petitioners as the earlier suit was instituted by Hari Shankar Prasad all alone in his own name, and not on behalf of the deities, the present petitioners. It is not disputed that the present petitioners have got an independent right and cause of action, apart from their next friend, to maintain an action against the defendants oppositel party.
8. Once it is held that the present action by the petitioners is different from the earlier suit of Hari Shankar Prasad who in the present action is acting as the next friend of the petitioners, the second ground that the next friend has sufficient means and can pay the court-fee, stands self-condemned.
The present suit is by the deities and the enquiry that was to be made by the Court below on their application to sue in forma pauperis was to see as to whether the petitioners as such were pauper or not. In other words, as to whether they were possessed of sufficient means to pay the court-fee prescribed by law on the plaint in suit, the capacity of the next friend to pay the court-fee was not a relevant consideration at all in this regard. Therefore, the learned Subordinate Judge has fallen into an apparent error of law in rejecting the application of the petitioners on the ground that their next friend had sufficient means and could pay the court-fee. Where an application is filed by a person under some disability, such as the petitioners, who are deities, they must come to the Court through some next friend according to the procedure. The capacity or capability of the next friend cannot be a relevant consideration for grant or refusal of the application filed on behalf of such a person. The enquiry regarding the means to pay the prescribed court-fee according to law is necessarily confined with respect to the capacity of the petitioners themselves, and not of anybody else.
9. The third ground that the deities were possessed of sufficient properties yielding enough income is also erroneous and misconceived. The very allegation in the application for permission to sue in forma pauperis and the accompanying plaint indicates that the defendants first party were in full control of the income of the petitioner-deities who were misappropriating the income in complete deprivation of and detriment to the petitioners. The petitioners, therefore, cannot be said to have any dominion or control over the income or the usufruct of the properties and, therefore, they cannot be said to be in possession of "sufficient means" to enable them to pay the prescribed court-fee. The possession that is spoken of in the Explanation to Rule 1 of Order XXXIII of the Civil P. C. is not the possession of property, but of "sufficient means", The possession of "sufficient means" refers to the possession of sufficient realisable properties which will enable the plaintiff to pav the court-fee on the plaint. In other words, the proper test to be applied to decide as to whether a person has sufficient means within the meaning of Rule 1 of Order 33 of the Civil P. C. is to see as to whether in the circumstances of the case, he can succeed in raising anything substantial by his exercising that power. In the case of Ramdas Sahu v. Ram Ohandra Sahu (AIR 1957 Pat 562), it was held by a Bench of this Court that what has to be decided in an application for leave to sue in forma pauperis is whether the person making the application is or is not a person possessed of sufficient means to pay the court-fee. A mere claim to a property is not 'means' within the meaning of Order 33, Rule 1, and hence it cannot be taken into account for determining the Question whether the petitioner is a pauper under Order 33, Rule 1.
10. Having examined the facts and the materials on the record of the case, it is established that the petitioners are not possessed of sufficient means which can enable them to pay the court-fee. Accordingly, it must be held that the learned Subordinate Judge has committed an apparent error of jurisdiction in refusing the prayer of the petitioners to sue the defendants-opposite party in forma pauperis on erroneous grounds. I would, therefore, allow this application and grant leave to the petitioners to sue the defendants-opposite party in forma pauperis. In the circumstances, however, I shall make no order as to costs.