S. Acharya, J.
1. Petitioner No. 1 is defendant No. 1 in Original Suit No. 14 of 1973. Sakuntala Devi along with her minor sons and mother-in-law has filed the said suit for declaration of their title to the suit land, confirmation of their possession thereon and for declaration that, the sale deed executed by defendant No. 4 (the husband of Sakuntala) in favour of the other defendants on 30-4-71 is invalid, illegal and inoperative. With the plaint an application under Order 33, Rules 1 and 2, C. P. C. to prosecute that suit in forma pauperis has been filed on the ground that the plaintiffs are unable to pay the court-fee as they have absolutely no source of income and have no properties in their possession from whichthey can pay the court-fees. In the plaint it is alleged that they have been rendered destitutes by defendant No. 4, who is a man of wayward habits and addicted to intoxication, and having come under the evil influences of defendants Nos. 1 to 3 has disposed of by sale the family properties in favour of the other defendants without any. legal necessity or consideration. The application under Order 33, Rules 1 and 2 was dismissed by the trial court mostly on the grounds that defendant No. 4 had 21/2 batis of land more than 3 years back; he sold away about 1 to 10 acres of land out of his said property; and that he had a shop at Bhubaneswar. On the dismissal of the said application under Order 33, Rule 2, C. P. C. filed by the plaintiffs, they preferred an appeal against that order before the court below. The lower court has allowed the said appeal holding that the findings and conclusion of the trial Court were arrived at on irrelevant, illegal and improper considerations. The court below on a consideration of the facts and circumstances of the case and the evidence on record has arrived at the finding that the petitioners are paupers and on that finding it has directed that the plaintiffs be allowed to prosecute the suit in forma pauperis. Defendants 1 to 3 have preferred this revision against the said appellate order.
2. It is urged by Mr. Misra, the learned counsel for the petitioners, that the court below had in law no jurisdiction to entertain or dispose of the appeal, and accordingly the impugned order passed by it is a nullity in law and has to be set aside. The plaintiffs' petition to allow them to prosecute the suit as paupers was filed on the ground that they did not have the financial capacity to pay the court-fee. Accordingly the order of the trial Court rejecting the said application -was passed under Rule 5 (b) of Order 33, C. P. C. Order 43, Rule 1, C.P.C., which provides for appeals from orders, does not provide for any appeal against an order passed under Rule 5 (b) of Order 33, C. P. C. This Court, by way of amending Order 43, Rule 1, C. P. C. in 1961, has added Clause (nn) to the said Rule providing therein foran appeal from an order rejecting an application to sue as. pauper on the ground specified in Clauses (d) & (g) of Rule 5 of Order 33. So, in this State an appeal shall lie against an order rejecting an application to sue as a pauper on the ground that the allegations contained in the said application do not show a cause of action (Clause (d)), or that the suit is barred by any law (Clause (g)). The order of the trial Court rejecting the plaintiffs' application to sue in forma pauperis was not under Clause (d) or Clause (g) of PV 5 of Order 33, C.P. C. and the said order was one under Clause (b) of Rule 5, against which no appeal is provided under the law. So the appeal in the court below was not maintainable and hence the court below had no jurisdiction to entertain the said appeal. So it couid not have passed the impugned order.
3. Mr. Mohanty, the learned Advocate who has been appointed by this Court to represent and safeguard the interest of the minor plaintiffs, opposite parties 2 and 3 in this revision, while not disputing the above position, urges that the order passed by the trial court on the plaintiffs' aforesaid petition is palpably illegal and untenable, and, though the appellate court had no jurisdiction to pass the impugned order, it has done real and substantial justice in the matter by assessing legally and correctly the facts, circumstances and the evidence on record and has given a correct finding on merits, and therefore this Court should refuse to exercise its discretionary jurisdiction under Section 115, C. P. C. in this matter. In support of his above submission Mr. Mohanty has cited quite a number of decisions which support the view that if the revisional court finds that real and substantial justice has been done by the order of the appellate court, though the same was passed without jurisdiction, this Court may refuse to exercise its re-visional jurisdiction in interfering with such an appellate order. This Court in the decision reported in 1965-31 Cut LT 443 (Narayan Nayak v. Sara Bewa) holds the above view. The same view has been taken in the cases reported in AIR 1931 Cal 425; AIR 1932 Mad 714; AIR 1946Cal 63; AIR 1954 Mys 147 and AIR 1973 Him Pra 29.
4. It is well settled that the exercise of power under Section 115, C. P. C. is discretionary with this Court, as the word used therein is 'may', and discretionary power of the Court should be exercised only to advance the cause of justice. Judicial discretion must be exercised with vigilance, circumspection, common sens, sound judgment and in the interest of ius-tice. If this Court finds that by exercising its power under Section 115, C. P. C. it is going to set aside a correct and logical order merely on the ground of lack of jurisdiction and in its wake it brings into existence a wholly illogical, illegal and incorrect order, then it may refuse to exercise its revisional jurisdiction as that would be giving effect to an illegal and incorrect order. In the case reported in AIR 1972 Pat 219 (Brij-nandan Prasad Singh v. Satya Narain Prasad Jain) Justice Untwalia holds that where the court feels that the order of the trial court is such, that even if the remedy of appeal to the lower appellate court has not been availed of, the order should be interfered with, the High Court can do so in exercise of its revisional power under Section 115, C. P. C.In the decision reported in AIR 1929 Rang 198 (M. T. T. K. M. M. N. Chettyar Firm v. K. P. A. N. M. Firm) it has been held:
'Where the appellate court has decided correctly, but has decided without jurisdiction by holding that the appeal lay, where appeal did not lie, High Court will not interfere in revision.'
In the case reported in AIR 1921 Lah 265 (Ganda Ram v. Sundar Lal) it has been held:
'The High Court is not bound to interfere on the revision side even when there is a defect of jurisdiction unless failure of justice has directly resulted from such a defect.'
In the case reported in AIR 1954 Mys 147 (Puttappa v. Maligamma) it has been observed that where it is shown that the order of the appellate court is just while the order passed by the trial court is unjust, the court of revision is not bound to interfere merely on the ground thatthe court of appeal had no jurisdiction to sit in appeal over the order, and it is so particularly when the question of lack of jurisdiction was not raised in the court of appeal.
In the present case before me, the question of lack of jurisdiction was not raised in the court below and for reasons to be stated below the order of the trial court is palably incorrect, illegal and based on considerations which are not germane to the subject matter in question.
5. The trial court has rejected the plaintiff's prayer to prosecute the suit in forma pauperis mostly as defendant No. 4 possessed sufficient agricultural lands about 3 years prior to the institution of the suit and at that time he had sold about 8 to 10 acres of land out of the same and was running a shop at Bhubaneswar. Order 33, Rule 1, C. P. C. enjoins an enquiry into the financial condition of the person or persons who apply to sue in forma pauperis. The explanation attached to Rule 1 of Order 33, C. P. C. defines a 'pauper' as a person who is not possessed of sufficient means to enable him to pay the fee prescribed by law for the suit filed by him, or where no such fee is prescribed when he is not entitled to property worth Rs. 100/-, other than his necessary wearing apparel and the subject-matter of the suit. In this case the plaintiffs have to pay the court-fee prescribed by law if their application to sue as paupers is not allowed. That being so, it was for the Court to enquire if the plaintiffs were possessed of the means to pay the court-fee for the suit filed by them and not the means possessed by the husband of plaintiff No. 1. Moreover, in this case the husband of plaintiff No. 1 had been arrayed as defendant No. 4 in the suit and it is specifically alleged against him that he has deserted them and has been disposing of his properties at random. Merely because the husband was possessing some property and that too more than 3 years back, it cannot be said in this case that the plaintiffs are now possessed of sufficient means to pay the court-fee. In a case of this nature it is to be ascertained if the plaintiffs have the capacity to pay the court-fee out of any property intheir possession, and for that one has to see if the plaintiffs have the capacity to raise money to pay the court-fees out of the properties in their possession. The property, which defendant No. 4 was possessing more than 3 years prior to the institution of the suit, is the joint family property. There is nothing on record to show that defendant No. 4 is still in possession of any substantial portion of the said property. Moreover, on the above-mentioned allegation in the plaint and the assertion on oath of plaintiff No. 1 that defendant No. 4 is not looking after the plaintiffs and the facts that the said property is the joint family property and most of it has been sold away to defendants 1 to 3 it appears improbable that the plaintiffs, two females and the minor children, would be able to raise any money from the said property to pay the court-fees in this case. Non-appearance of the plaintif in this Court in spite of . notice of this revision is also an indication of the financial incapacity of the plaintiffs. The trial court while dismissing the plaintiffs' petition under Order 33 Rules 1 and 2 has not considered the relevant fact as to whether the plaintiffs themselves at the relevant time were possessed of properties or had the means to pay the court-fee for this case. It dismissed the said petition merely on its finding that defendant No. 4 was possessed of some property as stated above. It has also not taken into consideration the earlier unchallenged testimony of plaintiff No. 1 on 2-2-73 in the same Misc. Case that the plaintiffs have no means, assets or source of income to pay the court-fees for this case and that defendant No. 4 is not looking after the plaintiffs. As the dismissal order passed by the trial court is based purely on irrelevant considerations, it is evidently incorrect, and in the interest of justice cannot be allowed to stand. The court below on the other hand has taken into consideration all the relevant facts and circumstances of the case appearing from the evidence and materials on records and has arrived at the finding that the plaintiffs are paupers and are not capable of pay-ing the court-fee for this suit. Though the court below did not have thejurisdiction to entertain the appeal, its assessment of the question of pauperism on the facts and circumstances revealed on the evidence and materials on record, is perfectly correct and justified. Thus while reversing the order of the trial court the court below has correctly decided the matter in question on merits. So substantial justice has been done by the order of the court below, though as per the procedural law it did not have the jurisdiction to pass that order. By setting aside the said order on the ground of lack of jurisdiction, one has to bring into existence and to give effect to the palpably illegal and incorrect order passed by the trial court, and hence I am not inclined to exercise my discretionary jurisdiction under Section 115, C. P. C. in this case.
On the above considerations though the impugned order is without jurisdiction, in the interest of justice, I do not deem it proper to set aside the finding and conclusion contained therein allowing the plaintiffs to prosecute their suit in forma pauperis as prayed for by them. That part of the order is hereby confirmed.
6. In the result the civil revision is dismissed, but in the circumstances the parties will bear their own costs throughout incurred on this matter.
7. Mr. A. Mohanty, who appeared for the minor respondents, fairly discharged his responsibility.