1. The defendants 3 and 4 who are the petitioners herein, had filed an application under Order 33, Rule 11 read with Section 151 C. P. C. to dispauper the plaintiff. It was alleged in the affidavit of the 4th defendant that the plaintiff, who gave evidence as P. W. 2, admitted that his family owned 900 square yards of house site in Sitharamapuram in Vijayawada and another site attached to Vishnu Oil and Flour Mills by the time of the death of his father and that both the above sites were sold away in 1961 for Rs. 20,000 out of which his share is Rs. 10,000. The plaintiff further stated that he is in possession and management of his late father-in-law's estate worth more than one lakh of rupees and that his father-in-law's estate is financing the litigation. It is further pleaded that the plaintiff has means and funds to pay the court fees and can no longer be permitted to sue as a pauper. The respondent filed a counter that he did not come into any funds after the situation of the suit and that his mother sold the site and did not give any share to the plaintiff. His contention is that even according to the family arrangement, those sites were given to the mother. His deposition did not mean that he had got into possession of the property or was possessed of any means. The statement regarding the use of the estate of his father-in-law in financing the litigation is also misconstrued. The plaintiff, therefore, contended that he cannot be dispaupered.
2. The trial Court, after reference to Order 33, Rule 9 C. P. C. came to the conclusion that a person can be dispaupered only if he comes into fund or property after the institution of the suit. it can not be considered as to whether he had certain property at the date he was declared to be a pauper and whether that fact was suppressed from the Court. The view taken by the trial court is wrong. If it is brought to the notice of the trial Court that the plaintiff, when he filed the application for permission to sue as a pauper, was in possession of certain properties or entitled to the same and could have, on the strength of his possession or right, raised the necessary funds for payment of the court fees and that matter was suppressed from the Court, certainly it would be a sufficient ground to dispauper such a plaintiff. In such a case, it would amount to a fraud on the Court. A Division Bench of the Madras High Court in Chellammal v. Muthulakshmi Ammal, (1945) 1 Mad LJ 53 = (AIR 1945 Mad 296) has held that where it is found that leave to appeal as a pauper was obtained by a person without disclosing the assets and interests in the property, such a plaintiff should be dispaupered. It is contended by the learned counsel for the respondent that the question that these matters were suppressed from the Court at the time when his client was permitted to sue as a pauper, is being argued for the first time in this Court. That was never the case pleaded by the petitioners in the lower court. There is some force in this argument because from the affidavit that was filed, it is clear that this specific case was not pleaded by the petitioners in the lower court. No doubt, this is brought to the notice of the lower court in the statement given by the respondent in his evidence as P. W. 2 who is sought to be dispaupered. It is, therefore, just that the respondent should be given an opportunity to meet the case that he had certain assets or rights in certain assets and suppressed the same at the time when he was declared as a pauper. I set aside the order of the lower court and remand this case for that purpose. The lower court shall consider the allegation that the respondent-plaintiff was possessed of certain assets or he had certain assets and rights in the property, on the strength of which he could raise the necessary court fees at the time of the institution of the suit and suppressed the same from the Court, and decide the matter. Both sides will be at liberty to lead evidence in the lower Court.
3. With this direction, the revision is allowed. No order as to costs.
4. Revision allowed.