Patna High Court
Ramdas Sahu vs Ram Chandra Sahu And Ors. on 4 December, 1956
Equivalent citations: 1957(5)BLJR40, AIR 1957 PATNA 562
JUDGMENT Dayal, J.
1. The plaintiff is the petitioner.
2. The facts material for the decision of this case are these : The petitioner, who had been living with his sister, just on attaining majority, wanted his share in the family properties, which was refused to him, and. consequently, he filed a suit in the Court of the Special Subordinate Judge. Ranchi, for a declaration of title and recovery of possession of his one-sixth share in the properties on partition. The said properties are described in Schedule B to, the plaint. The petitioner purported to file this suit in forma pauperis, and he made an application under Order XXXIII of the Code of Civil Procedure, seeking leave of the Court to sue in forma pauperis.
3. The learned Subordinate Judge, by his order dated the 4th July, 1953, held that the petitioner had omitted to include in his petition for permission to sue in forma pauperis certain properties from which he could raise the amount of Court-fee required, and therefore, he held that the petitioner's application for permission to sue in forma pauperis was not maintainable.
4. It is the definite case of the petitioner that he has no possession and control over any of the properties from which he could raise the amount of Court-fee payable in this case, which would foe nearly three thousand rupees. The suit itself was valued at Rs. 10,90,100/- in which the petitioner claims one-sixth share. 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, and a mere claim is not 'means' within the meaning of Order XXXIII Rule 1, and hence it cannot be taken into account in determining the question whether the petitioner is 9 pauper within Order XXXIII Rule 1--see Mt. Chanda Begum v. Maqsood Husain, AIR 1942 All 319 (A).
True it is that all applications for leave to sue in forma pauperis should set forth with the utmost good faith the whole of the assets of the applicant and. if it should appear in the course of the hearing that the applicant has not stated with the utmost good faith the whole of his assets the application should be rejected. Mr. Ghose, appearing for the plaintiff-petitioner, however, prays that the petitioner may be permitted to file an application for amendment of his original application to sue in forma pauperis wherein he proposes to pet out all the properties to which he may be deemed entitled but which are beyond his control and possession, and thus he proposes to fulfil the requirements of Order XXXIII Rule 2 of the Code of Civil Procedure.
Mr. Ghose, relies on Madan Mohan Lal v. Jhalman Singh, AIR 1954 Cal 89 (B) where it has been laid down that, where an application for permission to sue PS a pauper is otherwise in order, mere omission to include therein some property is not non-compliance with the provisions of Order XXXIII Rule 2 which must entail the rejection of the applicatioin under Rule 5, and permission should be granted for making an application for amendment of the original petition. To me it appears that in this case this decision should be followed, because according to the case of the petitioner he has been ousted of all his interest in the family properties and is residing with his sister, and has come forward with his claim in the present suit just on attaining majority, and his case is that he has no control or possession order any of the family properties. It appears that the petitioner is not even fully aware of all the family properties, and opportunity should be given to him to include them by way of amendment.
5. Considering all the circumstances, I am of opinion that substantial justice would be done in the present case in revision if the petitioner is allowed an opportunity to amend his pauper application suitably in regard to the omitted properties and thus bring it in conformity with Rule 2 of Order XXXIII.
6. I would, therefore, allow this application, and remand the case to the lower court in order to enable the petitioner to take suitable steps in the matter. In the circumstances of this case, the opposite party will get Rs. 32/- as costs from the petitioner in this case.
Choudhary, J.
7. I agree.