1. This revision petition gives rise to a short but interesting question with regard to the property to be excluded for the Purpose of determining the means of the plaintiff to pay the requisite court-fee. The defendant has preferred this revision petition against the order of the III Additional Judge, Secunderabad, whereby he granted leave to the plaintiff to file the suit in forma pauperis.
2. The plaintiff laid the suit for recovery of a sum of Rs. 37,050/- towards past mesne profits, with future mesne profits at the rate of Rs. 100/- per day together with future interest and for possession of the suit premises. The plaint allegation is that the defendant is the tenant of the suit premises with a monthly rent of Rs. 550 whose period of lease expired by 31-12-1973 and therefore he is a tenant by sufferance. The case of the defendant appears to be that he has a right of renewal from time to time. The three plaintiffs filed in forma pauperis the earlier suit, O. S. No. 414/1969 for eviction. In that suit, the finding of the trial court was that the defendant-tenant bad the- right of option to renew the lease up to 30-12-1973.
Aggrieved by the said judgement, the three plaintiffs preferred an appeal in forma pauperis in C. C. C. A. No.97 of 1975 which was dismissed on 24-3-1977 holding that the defendant-respondent validly exercised the option on 31-12-1973, but he has no further right of renewal. The plaintiffs thus claimed that the defendant is a tenant by sufferance and therefore he is liable to pay the: past mesne profits at the rate of Rs. 1500/- per month and that after deducting the payment of Rs. 550/- per month, they claimed Rupees 37,050/- on that account and future mesne profits at the rate of Rs. 100/- per day, It is however alleged by the plaintiffs that they are not possessed of sufficient means to pay the requisite court-fee of Rs. 3292/-
3. The inability of the plaintiffs to pay the court-fee was disputed by the defendant in the suit The contention is that the suit premises is worth rupees two Lakhs and that the subject-matter of the suit is only the tenancy right, the plaintiffs' title is not disputed and therefore that value of the suit proper has to be taken into account in determining the capacity of the plaintiffs to pay the court-fee,
4. One of: the plaintiffs has been examined as P. W. 1 in support of the alleged indigence of the plaintiffs. No rebuttal evidence has been let in by the defendant. On a consideration of the material, the learned Additional Judge held that the evidence does not disclose that the plaintiffs possessed any other property which would enable them to pay the court-fee. Alternatively, he held that even if the petitioners are held entitled to the property, there is nothing to show that even the comparatively small amount of court-fee could be raised on the security of the suit building. It is this order that is sought to be assailed in the revision petition.
5. Mr, Seetharamayya, the learned counsel for the petitioner, contended as follows: Though this pauper petition is governed by the amended provisions of O. 33, C. P. C. the subject-matter of the suit is a tenancy right involved and not the property as such, the title of which admittedly vests with the plaintiffs. Therefore, the value of the property cannot be excluded in determining the question of the sufficient means. The contention on the other hand is that the amended provisions of O.33 are substantially liberal provisions to enable an indigent person to Seek permission of the Court in filing suits in forma pauperis The further contention is that the examination of the question of the initial determination the maintainability of the application is let to an officer of the Court under the amended provisions and this is another intendment of liberal application of the said provision. It was lastly contended that the Court below cannot he said to have committed any error of jurisdiction in allowing the petition am therefore no interference is called for.
6. At the outset, it can be noted the. though a single Judge of this Court in Lax mamma v. Yadagiri Rao,AlR 1978 Andh Pra 240 held that the State is primarily interested in questioning the legality or correctness of the order of the trial Judge in pauper proceedings and that where leave bas been granted, the Court will not interfere with it in revision preferred by the defendant, it is now well settled that the enquiry into the pauperism is not exclusively a matter between the applicant and a State Government.
7. The Supreme Court in M. L. Sethi v. R. P. Kapur, : 1SCR697 held as Follows (at p. 2383):
'Under O. 33, R. 9, it is open to the Court on the application of the defendant to disappear the plaintiff on the ground specified therein, one of them being that his means are such that he ought not to continue to sue as a pauper. An immunity from a Litigation unless the requisite court-fee is paid by the plaintiff is a valuable right far the defendant. It follows therefrom as a corollary that the proceedings to establish that the applicant-plaintiff is a pauper, which will take away that immunity, is a proceeding in which the defendant is vitally interested. This is further borne out by O. 33, which confers the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is not a pauper.'
Thus the defendant can be said to have a right to question the pauperism.
8. Before considering the question as to what properties can be deemed to be in possession of the plaintiffs that would enable them to pay the court-fee, it is necessary to note the relevant provisions of the Civil P. C. before and after the amendment of 1976. It is, however, common ground that the prose application for leave to sue in forma paupris is filed in the month of April 1977 at the enforcement of the amended provision of the Civil P. C. from 1-2-1977. The relevant provisions of O. 33 (1), C. P. C. prior the amendment read as follows:--
'Subject to the following provisions, any suit may be instituted as a pauper. Explanation: A person is a 'pauper' when be is possessed Of sufficient means to enable: to pay the fee prescribed by law for 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.
Explanations 2, and 3 as appended to this R. 1 in the province of Madras as adopted by the Andhra Pradesh High Court read as follows: Explanation (ii) which is relevant far Our purpose reads as follows:-
'Any part of the subject-matter of the suit which the opposite party relinquishes and places at the immediate disposal of the plaintiff shall be taken into account in considering the question of the possession of sufficient means by the plaintiff.'
The provisions of R. 1 after amendment read as follows:
'1. Subject to the following provisions, any suit may be instituted by an indigent person.
Explanation I:- A person is an indigent person-
(a) if he is not possessed of sufficient means other than property exempt from attachment in execution of a decree and the subject-matter of the suit to enable him to pay the fee prescribed by law for the plaint in such suit or
(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.'
Thus, under the old Code any part of the subject-matter of the suit relinquished by the opposite party and placed at the immediate disposal of the plaintiff has to be taken into consideration in considering the question of sufficient means by the plaintiff. After the amendment, properties which are exempt attachment in execution of a decree and subject-matter of the suit have to be excluded in considering the question of sufficient means. The point for consideration is what is meant by the expression ''subject-matter of the suit'. This expression is not defined in the Code of Civil Procedure but that expression occurs in some of the provisions of the Code even prior to this amendment . In O. 23, R. 1 (3) (b), O. 33. R.3 and in the marginal note of S. 16 relating to place of institution of suits; the expression has been used. Similarly, in the Andhra Pradesh Court-fees Act, the expression has come, to be used Ss. 11, 24 etc.
In Chenchuram Naidu v. Md. Bahavuddin AIR 1933 Mad 3 the expression, subject-matter' was considered with reference to the provisions of O. 23, R. 1. The facts of that case were, that the plaintiff filed a suit for ejectment against hro defendants, Defendant No. 1 was a tenant paying rent to the plaintiff. However the 2nd defendant was made a party. A written statement was filed putting the plaintiff to strict proof of his title..
The plaintiff withdrew the suit as against the 2nd defendant without obtaining permission. That suit proceeded against the 1st defendant. Subsequently the plaintiff instituted the suit against the 2nd defendant for ejectment. It was held that the withdrawal the previous Suit was no bar, as the subject matter of the suit was not the same.
9. In Subodh Chandra v. K. L. Bank Ltd., AIR 1941 Cal 659 the provisions of O. 33, R. 1 were considered and it was held that the equity of redemption cannot be regarded to be the Subiect-matter of the Suit where the suit is for enforcement of the mortgage. It further held that the value of equity of redemption cannot be excluded by the Court from its consideration in determining whether the mortgagor is a pauper or not.
10. In VaIlabh Das v. Madanlal. : 1SCR211 it is held (at p. 989):
'Subject-matter in O. 23 R. 1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit'
11. The question as to what is the value Of the subject-matter of the suit for purposes of granting certificate for leave to appeal to the Supreme Court came up for consideration in Ramric LaI v. Sachindra Narayan : AIR1968Cal316 . It is held there in that in a suit for eviction of a tenant by his landlord, the subject-matter in dispute is tenancy and it value is different from the value of the Property demised and though the market value of the flat may be more than Rs. 20,000./- but the market value of the tenant's interest cannot be the same. It was held that in the absence of an, material to show that the tenant's interest is of the value more than Rs. 20,000/- a certificate under Art. 133 (1) (a) cannot be granted.
The relief involved in the present suit is the eviction of a tenant. It cannot be said that the entire property itself is the subject-matter of the suit The expression 'subject-matter of the suit' cannot be equated to the property itself. Thus, the right in dispute is, the right of the tenant to continue in possession. It is true that some amount on account of damages for use and occupation is also claimed. But, nevertheless, the whole premises itself cannot be mid to be involved. Nor it can it be said to be the subject-matter the suit. Thus, even under the amended provisions though the subject-matter of the suit has to be excluded in determining the question. It can, however, be seen that the old provisions while defining a pauper did not specifically provide for excluding the subject-matter, unless where such part of the subject-matter is relinquished by the defendant and is put at the immediate, disposal of the plaintiff. This explanation was engrafted as per the provisions of the Andhra Pradesh Amendment Act. The object is evident that if the plaintiff is put in immediate possession of the benefit by which be can raise the fund, he could not be termed as a 'pauper' so as to grant leave to him to file the suit in forma pauperis. Under the amended provisions, the subject-matter has to be excluded. But as the subject-matter in this suit cannot be construed as comprehending the entire property. but only the right of tenancy, the suit premises cannot be taken as the subject matter of the suit
12. The contention of Mr. Seetharamayya, the learned counsel for the petitioner is that the suit premises itself is not involved in the suit and any benefit accruing therefrom cannot be excluded in determining whether the plaintiff is an indigent person or not. is well-founded. It is equally relevant to note that the object of the amendment as is barns out by the statement of objects and reasons amending Act, is to enable a person to sue an indigent person the soap of the means the applicant is being substantially libera lised and for that purpose the subject-matter of the suit has to be excluded. It can never the less be held that the entire house property itself not being the subject-matter of the suit cannot be excluded in determining whether the plaintiff is an indigent person.
13. The evidence of P. W 1 is to the effect that the value of the house is nearly -Rs. 2 Lakhs. But it is also his evidence that the suit property was once attached for arrears of his father's income-tax and that the mid attachment has also been raised. His further evidence is that they cannot raise any mansy an the snit Premises because it is in the possession of a tenant. It may appear surprising that an amount of nearly Rupees 8500/- which is required as court-fee cannot be realised even by mortgaging the said house which right is with the plaintiffs, particularly so when the tenant has not denied their title. But the evidence of P. W. 1 also remains unrebutted. That apart, it was at one time attached far the realisation of the income-tax arrears of the father of P. W. I it is equally borne out by the averments. in the plaint that from 1969 the litigation between the plaintiffs and the defendant was continuing. Thus, for the last eight years immediately preceding the institution of the suit, the litigation was pending. Though it can be said that by mortgaging the suit premises of the value of 2 Lakhs it may not he difficult to raise a paltry sum of nearly RS. 3500/- required for paying the court-fee, it is equally possible to say that no purchaser would come forward when the tenant is asserting his right to continue in possession. Similarly it cannot be said that any mortgagee would accept this house unless it be for a paltry sum. That part, no prospective buyer would purchase worry and litigation by entering into any sale transaction with the plaintiffs. The trial Court accepted the evidence of P. W. 1 and held as against these circumstances, it cannot be presumed that the requisite court-fee can be 'raised by the plaintiffs. That is a question of fact.
14. It is rightly contended by the respondent's counsel that in accepting the evidence of P. W. 1, the trial Court did not commit any error of jurisdiction and there fore no interference is warranted under the provisions of S. 115, C. P. C It is held in Hindustan Aeronautics v. Ajit prasad : (1972)ILLJ170SC that where the lower appellate Court's order is within its jurisdiction, the High Court should not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularly. It can be repeated that no rebuttal evidence has been let in by the defendant to contradict the evidence of P. W. 1. The order of the trial Court was perfectly within its jurisdiction The acceptance of the evidence or P. W. 1 cannot be said to be perverse having regard to the antecedent litigation which is pending for the last eight years and also due to the fact that the very house stood at one time attached for the recovery of income-tax arrears due by the father of P. W.I.
15.. Though it was contended by Mr. Seetharamaya, the learned counsel for the petitioner that the tide of the plaintiff is not disputed and that his right to affect a sale of the property is still available or that the right to mortgage the suit premises is avail Able to the plaintiff so as to raise necessary funds for the purpose of paying the court fee, it is not a matter of mere presumption that comparative smaller amounts on the security of this house which is of consider able value could be raised. As already noticed above, any prospective buyer would not purchase worry and litigation, even though the saleable interest in the property vests in the plaintiffs.
16. In the ruling 'reported in Virupakshiah v. Shivalingaiab AIR 1980 Andh. Pra. 540 it was heM:'?t cannot be assumed that a person who is entitled to a share in the joint family property of considerable value Could always be able to raise comparatively smaller amounts on its security and when the property does not consist of cash, the test is not whether the person has a power in the abstract of raising money but whether in the concrete circumstances of the ease, he could succeed in raising any thing substantial by exercising that power It is also held therein that in each case evidence would be necessary to enable one to judge whether money could be raised an the properties. It can be repeated that there is not a shred of evidence on behalf of the defendant to show that there were any intending bidders to purchase this Suit premises in spite of the earlier attachment or , spite of the tenant squatting possession of the same and in spite of the litigation for the last eight years. The evidence of P. W. 1 that even by mortgaging this Property the amount required for court-fee cannot be raised remains unrebutted. In accepting the evidence of P. W. I, it cannot be said that the trial Court acted perversely or with mater;al irregularity to warrant interference by may of revision.
17. It was further the grievance of the learood counsel for the petitioner taking advantage of the amended provision, the plaintiffs have exaggerated their claim on account of damages and also the rate at which the future, mesne profits are claimed and that in the event of the success of the plaintiffs, the defendant would be burdened with payment of the entire court-fee, regardless of the suit being decreed on arount of past and future mesne profits only m part, I am said that this contention , wt well founded. O. 33, R. 10 as amended lays down that where the plaintiff succeeds in the suit, the amount of court-fee which he would have paid on the plaint shall be recovered by the State Government from any party ordered by the decree to pay the same and that will be a fint charge on the subject-matter of the suit. Thus, where a pbintiff succeeds in part only, it is open to the Court to decree the suit with proportionate costs. It cannot therefore be Said that the defendant will be saddled with the costs on account of an exaggerated claim, even though the plaintiffs ultimately succeed in part only.
18. For all the aforesaid reason I hold that no interference is called for. The revision petition fails and is accordingly dismissed with costs
19. Petition dismissed.