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Lakhyeswar Karmi and ors. Vs. Padmabati Karmi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 278 of 1966
Judge
Reported inAIR1969Ori10; 34(1968)CLT971
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 33, Rule 2; Registration Act, 1908 - Sections 17(1)
AppellantLakhyeswar Karmi and ors.
RespondentPadmabati Karmi and ors.
Appellant AdvocateR.N. Sinha, ;S.N. Sinha and ;R.P. Behera, Advs.
Respondent AdvocateR.C. Misra(1), Adv.
DispositionRevision allowed
Cases ReferredBanshidhar Mohapatra v. Souri Samal
Excerpt:
.....v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - even in her evidence in court she does not clearly and unambiguously assert that she has no interest in those properties. i have not permitted para but permitted my sister jaito enjoy my mother's land. i have not permitted my sister jai to enjoy my mother's properties'.4. her evidence is not unequivocal and is shaky. doubtless allowing parties to sue in forma pauperis essentially involves non-payment of court-fee but order 33 itself prescribes the stringent procedure for the success of such an application. if the view is held that high court cannot interfere even if no (sic) subordinate courts do not at all adhere to any of the rules prescribed under order 33..........interest would be about 7 acres and odd yielding an income of rs. 1000/- per annum. the learned subordinate judge, bargarh, came to the conclusion that plaintiff no. 1 was not in possession of the property she inherited from her mother. on that finding he held that she had no sufficient means to pay the requisite court-fee and allowed her application to sue in forma pauperis. against this order, the civil revision has been filed. 2. mr. sinha contends that the learned subordinate judge has recorded no finding that the opposite party no. 1 has no interest in the properties inherited by her from her mother and his finding that she was not in possession of those properties was contrary to the evidence on record and is based on a wrong notion of law that the draft record of rights.....
Judgment:
ORDER

G.K. Misra, J.

1. Plaintiff (opp. party no. 1) filed a Title Suit valued at Rs. 9600/- on which a court-fee of Rs. 1086/- was payable. She filed an application to suein forma pauperis alleging that the total property belonging to her would be worth Rs. 240/-. The defendants contested the pauperism and took a specific plea that plaintiff was in actual possession and enjoyment of one-third of the property inherited by her from her mother in her own right, title and interest. Plaintiff's interest would be about 7 acres and odd yielding an income of Rs. 1000/- per annum. The learned Subordinate Judge, Bargarh, came to the conclusion that plaintiff No. 1 was not in possession of the property she inherited from her mother. On that finding he held that she had no sufficient means to pay the requisite court-fee and allowed her application to sue in forma pauperis. Against this order, the civil revision has been filed.

2. Mr. Sinha contends that the learned Subordinate Judge has recorded no finding that the Opposite Party No. 1 has no interest in the properties inherited by her from her mother and his finding that she was not in possession of those properties was contrary to the evidence on record and is based on a wrong notion of law that the draft record of rights is not admissible in evidence. Mr. Misra, on the other hand, contends that whatever may be the error the Subordiante Judge might have committed, this Court cannot interfere with it in revision and further the lower court's order substantially involves the question of court-fee which can be assailed only by the State and not by the petitioners.

These contentions require careful consideration.

3. The contention of Mr. Sinha that the learned Subordinate Judge has not recorded any finding regarding extinguishment of plaintiff's title in her mother's property is not disputed by Mr. Misra. The learned Subordinate Judge exercised his jurisdiction illegally in over-looking the provision of Order 33 Rule 2, C. P.C. which runs thus :

''Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.'

It would thus be clear that it was the paramount duty of the plaintiff to include her share of the mother's property in the schedule. She ought to have asserted in the application that there was extinguishment of her title in those properties and the properties were no longer available to her. The pauper applicationdid not contain such an averment. Even in her evidence in Court she does not clearly and unambiguously assert that she has no interest in those properties. Her evidence is:

'I permitted my sister Para to enjoythe entire properties of my mother. Ihave executed any (no?) document in bvour of my sister Para. I have not permitted Para but permitted my sister Jaito enjoy my mother's land. I have notasked my sister Jai and her son to giveme back my share of mother's land. Thereis no document to this effect.'

xx xx xx

'I have no interest whatsoever in my mother's properties. I am not in need of enjoying my mother's properties and hence 1 say that I have no interest therein. I have not permitted my sister Jai to enjoy my mother's properties'.

4. Her evidence is not unequivocal and is shaky. There is no corroboration. This statement has been challenged by defendant No. 1 (D. W. 1). That apart, relinquishment of property of the value of more than Rs. 100 can be made only by a registered document. Taking the entire matter into consideration, there can be no escape from the conclusion that the plaintiff has substantive title and interest in 7 acres and odd of land which she inherited from her mother.

As admittedly she did not mention this item of the properties in the application as required under Order 33 Rule 2, C. P.C. the application to sue in forma pauperis was liable to be dismissed.

5. The next question for consideration is whether the civil revision at the instance of the petitioners is not maintainable. On analogous facts a learned single Judge held in Chinnamani Nadar v. Devagirubai Rajan, 1958 (2) Mad LJ 93 that a revision at the instance of the defendant is not maintainable. His Lordship was of the view that allowing an application to sue in forma pauperis involving the question of payment of court-fee affects the State and not the defendants.

With great respect I do not subscribe to this view. Doubtless allowing parties to sue in forma pauperis essentially involves non-payment of court-fee but Order 33 itself prescribes the stringent procedure for the success of such an application. If the procedure prescribed by law is not followed by the subordinate courts and if they exercise their jurisdiction illegally then a case for interference under Section 115, C. P.C. arises. There are abundant authorities in support of this view even in cases arising out of an order allowing a pauper application. If the view is held that High Court cannot interfere even if no (sic) subordinate courts do not at all adhere to any of the rules prescribed under Order 33 disastrous consequences would follow. Whether the court would interfere in civil revision in a particular case depends upon the facts and circumstances of each case and the nature of violation.. But a broad proposition of law cannot be laid down that in no case the Court should interfere in civil revision. In this case the Subordinate Judge exercised his jurisdiction illegally in allowing the pauper application ignoring the position that she had means to pay court-fee. Rathnavarmaraja v. Vimala, AIR, 1961 SC 1299 is not a case under Order 33, C.P.C. Its principle that a revision in court-fee matters at the instance of a defendant is not maintainable, cannot be extended to cases under Order 33, C. P.C. by analogy or implication.

6. In recording of finding that the plaintiff is not in possession of the properties belonging to her mother, the learned Subordinate Judge has committed an error of law in saying that the draft record of rights is not admissible for any purpose. The matter is concluded by a decision of this Court reported in Banshidhar Mohapatra v. Souri Samal, ILR 1967 Cut 163 wherein it was observed that it is admissible in proof of the fact that at the time when the draft record-of-rights was prepared, the tenant to whom the parcha slip was issued was found to be in possession by public servants in due discharge of their duties. In view of my conclusion that the plaintiff has substantive title in her mother's properties, it is unnecessary to pursue the question of possession.

7. In view of the aforesaid discussion the plaintiff's application to sue in forma pauperis is liable to be rejected as she has means to pay the requisite court-fee. The order of the learned Subordinate Judge is set aside and the civil revision is allowed with cost. Hearing fee Rs. 50. Mr. Misra for the plaintiff prays for three months time for payment of the court-fee. Tune is allowed. The record of the case be sent back at once as the case has been long pending.


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