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Mt. Kiran Devi Vs. Madan Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All631
AppellantMt. Kiran Devi
RespondentMadan Lal and anr.
Excerpt:
- .....applicant, should not be taken into consideration. he has relied on a division bench ruling of the calcutta high court reported in sm. mabia khatun v. sheikh satkari : air1927cal309 , in which the learned judges observed as follows:besides if the ornaments were such as are ordinarily worn by women of her class, those ornaments could not have been taken as means enabling her to pay the prescribed fee. ornaments which a woman ordinarily wears are of the same class of personal property as her wearing apparel. without any finding that the ornaments were something beyond and more valuable than what a woman of her class ordinarily uses the subordinate 'judge's conclusion cannot be accepted as correct.these observations were no doubt obiter dicta as it was not proved in that case that the.....
Judgment:

Malik, C.J.

1. This revision has been filed under Section 115, Civil P.C. against an order refusing to allow the applicant to sue in forma pauperis. The opposite party has urged that the applicant was in a position to pay the court-fee. The lower Court has held in favour of the opposite party and has believed the evidence of the witnesses produced by them that the applicant was given ornaments worth more than 500 at her wedding and she was still possessed of them and was in a position to pay the court-fee. The learned Counsel for the applicant has urged that ornaments are wearing apparels within the meaning of the term under Order 33, Rule 1, Civil P.C., and at least some of these ornaments which are generally worn by ladies of the status and position of the applicant, should not be taken into consideration. He has relied on a Division Bench ruling of the Calcutta High Court reported in Sm. Mabia Khatun v. Sheikh Satkari : AIR1927Cal309 , in which the learned Judges observed as follows:

Besides if the ornaments were such as are ordinarily worn by women of her class, those ornaments could not have been taken as means enabling her to pay the prescribed fee. Ornaments which a woman ordinarily wears are of the same class of personal property as her wearing apparel. Without any finding that the ornaments were something beyond and more valuable than what a woman of her class ordinarily uses the Subordinate 'Judge's conclusion cannot be accepted as correct.

These observations were no doubt obiter dicta as it was not proved in that case that the applicant had any ornament at all. With great respect to the learned Judges of the Calcutta High Court, we are not prepared to follow that decision and to hold that the ornaments in possession of a woman are a part of wearing apparel and should not be taken into consideration in finding out whether she has the means to pay the court-fee. The view of the Calcutta High Court does not seem to have been followed in Lahore or Patna.

2. The revision is dismissed with costs.

3. 'When the applicant filed this revision she made an application that the time given by the lower Court for payment of the court-fee may be extended. Notice of that application was issued to the other side on 16th February 1948 and an interim stay order was passed by the learned single Judge on 30th September 1918 after hearing both the parties. The Court held that the question whether further time to pay court-fee should or should not be given might be considered by the Bench hearing the revision.

4. We consider it proper that the applicant may be given one month's time to pay the court-fees after receipt of the record by the lower Court, in case she wishes to proceed with the suit.


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