1. This is an application under Section 115, Civil P.C., for revision of an order passed by the Civil Judge, Agra, permitting the opposite parties plaintiffs to sue as paupers. The suit instituted by the opposite parties against the applicants is one for declaration of title, possession of immoveable property and damages and is valued at Rs. 6,000 on which court-fee of Rs. 835 is payable. The learned Civil Judge after an enquiry found that the opposite parties were not possessed of sufficient means to enable them to pay the court-fee.
2. The first contention of Sri Gopal Behari was that the learned Civil Judge was in error in permitting the opposite parties to sue as paupers merely on the finding that they were not possessed of sufficient means and that he should not have permitted them unless he found that they were not entitled to property worth Rs. 100. This contention is based upon the explanation
'A person is a 'pauper' when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the 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 o the suit.' (Rule 1, of Order 33).
If there is a fee prescribed by law for the plaint the plaintiff is a pauper if he is not possessed of sufficient means to enable him to pay it; whereas if no such fee is prescribed, he is a pauper if he is not entitled to property worth Rs. 100 excluding his necessary wearing apparel and the subject-matter of the suit. It was argued that the fee prescribed by law means fixed fee regardless of valuation and that when ad valorem fee is payable it is a case in which 'no such fee is prescribed.' In other words, distinction was sought to be made between fixed fee and ad valorem fee and it was argued that the first limb of the explanation applies in the former case and the second limb in the latter case.
We are quite unable to agree with the applicants' contention. There is no justification whatsoever for putting such a strained interpretation on the words 'prescribed by law.' If law lays down the fee payable on a plaint, it is a fee prescribed by law regardless of how it is to be calculated. Ad valorem fee payable on a plaint is as much a fee prescribed as fixed fee; both are prescribed by law, neither less than the other. The main law that prescribes court-fees is the Court Fees Act and any fee made payable under it is undoubtedly a fee prescribed by law.
The fees indicated by either of the Schedules annexed to the Act are the fees by which the corresponding documents are chargeable; see Section 6(1). The explanation added by the State of U.P. to Section 6 uses the word 'prescribed' for all fees indicated by either of the Schedules. Schedule I indicates ad valorem fee, and it follows that ad valorem fees also are fees prescribed by law. Fixed fee is fee payable regardless of valuation while ad valorem fee is fee that varies with the valuation. Ad valorem fee payable on a particular plaint is as much fixed as fixed fee and no rational basis exists for distinguishing between the two for the purpose of deciding whether the plaintiff is a pauper.
Whether he is a pauper or not will depend upon the fee payable on the plaint, but surely not upon how the fee is calculated or whether it is one for all valuations or varies with the valuation.
3. The principal reason for the argument was that the words 'where no such fee is prescribed' could not mean 'where no such fee is chargeable or payable,' because if no fee was chargeable or payable, there would be no object in declaring the plaintiff to be a pauper. This assumes that a plaintiff is declared to be a pauper only for the purpose of exempting him from payment of fee on the plaint; this assumption is erroneous. Under Rule 8 of the Order a pauper plaintiff is exempted from payment of fee in respect of any petition, appointment of a pleader or other proceeding connected with the suit.
The Legislature might have thought it proper to exempt plaintiffs not entitled to property worth more than Rs. 100 from payment of these fees and, therefore, they would have to be declared as paupers even though they had not to pay any fee on the plaints. Section 19 of the Court-fees Act exempts plaints in certain suits from payment of any fee; so it cannot be argued that the words 'where no such fee is prescribed' mean not that no fee is payable by law but that fee is payable by law but has not been prescribed, that is, it is not a fixed fee but left to vary from plaint to plaint.
4. Sri Gopal Behari does not support his contention by any authority. On the other hand, cases in which ad valorem court-fee would have been payable on the plaint have been treated as governed by the first limb of the explanation. In Mt. Kanizum Hani v. Syed Mohammad : AIR1933All556 , the suit was for setting aside an alienation made by a mutawalli; ad valorem court-fee was payable and yet the case was dealt with as if governed by the first limb. The suit in Rajdeo Singh v. Jagdeo Singh : AIR1934All323 , was one for setting aside a deed of gift and possession; ad valorem court-fee was payable and it was held it was a fee prescribed for the plaint.
5. The next contention is that the opposite parties have failed to prove that they have not sufficient means, to pay the fee payable on the plaint. The argument was that when they lay claim to property valued at Rs. 6,000 by themselves, they cannot plead that they have not the means to pay Rs. 835. Sri Gopal Behari contended that in a case governed by the first limb of the explanation the subject-matter in dispute is not to be excluded.
Of course when the Court has to consider whether a plaintiff is not entitled to property worth Rs. 100, the subject-matter of the suit is to be ignored; but it does not follow that it is not to be ignored in the other case in which the Court has to consider whether the plaintiff has sufficient means to enable him to pay the fee. In Rajdeo Singh's case (B) (supra), it was observed by Bennett J., that in considering the means of a plaintiff the Court can take into consideration the plaintiff's possession of a part of the subject-matter of the suit. We respectfully agree with this view.
If a plaintiff is in possession of the subject-matter of a suit or a part of it, it must certainly be taken into consideration in ascertaining his means because this property is a part of his 'means' but we cannot go further and insist upon taking into consideration the subject-matter of the suit even when the plaintiff is not in possession of it, nor was this intended to be laid down by Bennett J. In Mithai Lal v. Jagan : AIR1937All740 , the plaintiff suing for partition of his share in the joint family property was held to be possessed of sufficient means to pay the fee, because the value of his share was considerable. Sulaiman, C. J. and Hamilton, J., refused to ignore the subject-matter of the suit when inquiring into the plaintiff's means, They dissented from Balagauri v. Moti Lal, ILR 47 Bom 523 : (AIR 1923 Bom 247) (D), and observed at page 1172 (of All LJ): (at page 741 of AIR):
'The legislature has advisedly excluded the subject-matter of the suit in the second case, but has refrained from excluding it in the former case. It is, therefore, not possible to hold that in cases coming in the first category the subject-matter of the suit must always and of a necessity be excluded from consideration. Whether it should or should not be excluded is a matter for the consideration of the Court which has to decide the question whether the plaintiff is or is not possessed of sufficient means to enable him to pay the fee.'
6. At page 1173 (of All LJ) : (at p. 741 of AIR) they observed :
'If the learned Judges of the Calcutta High Court meant to lay down ''in Provash Chandra Lahiri v. Muncipal Commissioner of Howrah, ILR 57 Cal 980 : (AIR 4930 Cal 147 (2) ) (E),' that the subject-matter of the dispute cannot always be taken into account in considering whether the plaintiff is possessed of sufficient means to enable him to pay the fee or not then we would have no quarrel with that view; but we are unable to agree with the view that the subject-matter in dispute can in no circumstances be taken into consideration even if the case falls under the first paragraph of the explanation.'
We respectfully agree with the learned judges. Neither is it correct to say that the subject-matter of the property must always be excluded in an inquiry into the plaintiff's means, nor is it correct to say that it can even never be taken into consideration. We may here mention that the Legislature used the words 'other than ........ the subject-matter of the suit' in the second limb and not in both the limbs because of the difference in the subject-matters of inquiry of the two limbs. The subject-matter of inquiry in the first limb is the means and that in the second limb is the title to property.
A plaintiff may be entitled to property even though he is not in possession of it and is suing for possession of it; if these words 'other than .............. of the suit' had been omitted from the second limb the value of the subject-matterof the suit even though not in possession of theplaintiff would have to be taken into account. Theword 'means' used in the first limb is sufficientlyflexible to enable a court to disregard the subject-matter of the suit if not in the plaintiff'spossession.
Moreover, the word 'means' is by no means identical with property and it would not have been quite appropriate to exclude the subject-matter of the suit from the scope of the means. Court-fee is payable in cash but it is not essential for a plaintiff to be in possession of so much cash in order to be able to pay the fee. If he has sufficient means, he can raise the necessary cash for payment of the fee, in which case he Should not be declared to be a pauper. We think that the following statement by Section C. Sarkar in his book on Civil Procedure third Edition page 982 lays down the correct law;
'When applicant's right to sue as a pauper is challenged the enquiry is as to whether he has 'sufficient means' to pay the court-fee. It does not mean possession of ready money. If he is in possession of property enabling him to raise cash easily for payment of court-fee, he has sufficient means: but mere possession of property is not enough. The stress is not on possession of property but possession of 'sufficient means'. A person may be in possession of, or entitled to property and yet not be possessed of sufficient means to pay the court-fee.'
The opposite parties are not in possession of the subject-matter of the suit and the learned Civil Judge rightly refused to take it into consideration when inquiring into their means. They have only a right to sue for possession, but this right is not their means, because they cannot be compelled to raise money by mortgaging it. In Vedanta Desikacharyulu v. Perinde Vamma, ILR 3 Mad 249 (P), it was stated that it is not the intention of the law to compel persons seeking relief to mortgage their claims.
This case was distinguished, though not dissented from by a Bench of this Court in Kapil Deo Singh v. Ram Rekha Singh, ILR 33 All 237 (G). There the plaintiff who sued for redemption of a mortgage, was held to be not a pauper, because he owned the equity of redemption on the security of which he could raise money. He was left with some property viz., the equity of redemption, he was not possessed of only a right to sue. In Mt. Chanda Begum v. Maqsood Husain, AIR 1942 All 319 (H), a Muslim woman's claim for dower debt against her husband was held to be not means within the meaning of the explanation.
In Ponnambalam Pillai v. Paniaksharma Pillai, AIR 1949 Mad 544 (I), property which was not in the plaintiff's possession was left out of consideration. Whether a plaintiff has means to enable him to pay the fee does not depend upon his power in the abstract to raise money; it is not a question of mere credit of the plaintiff. He must have means to enable him to raise money in an open market; if he has no property at all it cannot be said that merely because he claims a title fro some property, he has means to raise money. The property in suit not being in possession of the opposite parties could not be taken into consideration in an inquiry into their means. They have no other property and they were rightly declared to be paupers.
7. The application is dismissed.