S. Barman, J.
1. The defendant is the petitioner in revision directed against an order of the learned Munsif, Kendrapara allowing; the plaintiff to continue the suit in forma pauperis. The plaintiff's suit was for declaration of title in respect of certain properties.
2. The only question for consideration in this revision is whether the learned Munsif was justified in making the order allowing the respondent-opposite party being the plaintiff in suit, to continue the suit in forma pauperis. The facts are that there are four items of property alleged to belong to the plaintiff. The first item is movable worth Rs. 402/- the remaining item being immovable properties. It appears that the plaintiff had within four months after the institution of the suit had sold certain lands -- 63 decimals in area -- to his wife alleged to be benami, with regard to which the learned Munsif has not however given any finding that the plaintiff was not in possession thereof.
The next item of property is 5.09 acres of land, with regard to which there is no finding as to its actual value. Lastly there is a fourth item of property being in area 181/2 decimals which is stated to be the home-stead land but not including the residential house of the plaintiff. The plaintiff made the application for continuing the suit in forma pauperis on materials stated in his petition. He expressed his inability to pay court-fees on the grounds stated therein.
He pleaded that he was not possessed of sufficient means enabling him to pay the fee prescribed as court fee in the suit. It appears that there was an application made by the defendant to the learned Munsif directing the plaintiff to get his property sold after receiving the consideration money of Rs. 470/-. In other words, the defendant offered to purchase from the plaintiff certain properties for a consideration of Rs. 470/- presumably to enable the plaintiff to pay court-fee out of the purchase money, Surely, if the plaintiff had accepted the offer he certainly would have out of the purchase money paid the additional Court fee of Rs. 334/9/- in addition to the court-fee already paid and continued the suit. In the said application made by the defendant offering to pay Rs. 4707-as aforesaid the learned Munsif by an order dated 17, August 1957 rejected the same application with the observation that no action could be taken on the application at that stage and so the application was rejected. The learned Munsif however gave no reasons for rejection of the said offer made by the defendant. The plaintiff however chose to pursue his application for permission to continue the suit in forma pauperis.
3. In this contest, it must be made clear that the order allowing parties to initiate or continue litigation in forma pauperis should not be lightly made. It is only in deserving cases that such indulgence should be allowed within the strict provisions of the law. On this point Mr. R. Mohanty, learned counsel appearing for the defendant, cited before me two decisions of the Patna High Court. In Mt. Jainatun Nissa Bibi v. Mt. Idrakun Nissa, AIR 1941 Pat 638 it was held that where the applicant is shown to have a share in her husband's property but which is not in her possession, the Court should not allow her to sue as a pauper without considering whether she has shown that with that share she could not raise enough money to pay the court fees. A mere conclusion on the evidence, however erroneous, will afford no ground for interference in revision but where the court in such a case fails to consider it, it amounts to a materially irregular exercise of jurisdiction justifying interference in revision under section 115(c). In Mt. Bibi Khudai Jatul Kubra v. Mt. Bhagalan, AIR 1950 Pat 364 a Division Bench of the Patna High Court held that the possession that is spoken of in the first portion of the Explanation to Order 33, Rule 1 Civil Procedure Code is not possession of property but of sufficient means and the Court has to enquire into the capacity to raise money necessary to pay the court-fee and not actual possession. Where the Court holds that the applicant has got property but does not give a finding on the value of the property the Court does _not properly exercise jurisdiction in holding that the applicant should not be permitted to sue in forma pauperis. The facts in that case were that the applicant brought a suit against the opposite party claiming a sum of Rs. 13,000/- and odd being her dower debt against the estate of her deceased husband. The Court-fee payable was Rs. 1,2007- and odd. The applicant alleged that she was not possessed of sufficient means to pay the court fee. For the opposite party a survey khatian was filed to show that about 3 bighas of raiyati land stood recorded in the name of one T in certain khatas mentioned therein. The said T died leaving behind a son and two daughters one of whom was the applicant. After stating the facts in the judgment the High Court set aside the order of the learned Subordinate Judge and remanded the case for rehearing and it was left open to the parties to adduce fresh evidence if they so chose. The learned counsel also cited before me a decision of the Madras High Court in Venkatasubba Reddi v. kesava Reddi, AIR 1950 Mad 297 where it was held that the petitioner for leave to sue in forma pauperis is expected to disclose whatever properties he is possessed of in the sense of not only whatever property he is actually possessed of but also whatever property he is entitled to, apart from the subject-matter of the suit. Furthermore, the Madras High Court proceeded on to observe that it cannot be said that a person can be held to be pauper without some further evidence that he was not able to raise money on the property in which he has got a saleable interest for the payment of Court fee payable on his plaint, from the mere fact that such property was not in his possession.
In the light of the authorities cited above, it is quite clear that applications far leave to sue in forma pauperis have to be carefully considered after ascertaining the capacity of the party to pay court-fees. The policy of the Legislature is to help a deserving party where he needs such help. Surely it is not the policy of the Legislature to give indulgence to persons, who have the capacity to pay.
4. Mr. D. C. Sahu, learned Counsel appearing for the plaintiff, urged before me that on the facts of this case it was a fit case where the plaintiff was rightly allowed to continue the suit in forma pauperis. In support of his contentions he specifically dealt with the different items of property. His contention was that none of these properties, -- out of which he could raise money to pay the court fee, -- was in his possession. With regard to the offer of Rs. 470/- made, by the defendant for certain properties, the plaintiff could not give sufficient explanation for non-acceptance of such offer. It is quite clear that if the said offer had been accepted the plaintiff could certainly have been able to pay the court fee and continue the suit. If the plaintiff was earnest all out the suit he certainly could have accepted the offer. Mr. Sahu further contended that the subject-matter of the litigation should not be taken into consideration for determining whether the plaintiff is possessed of sufficent means. In 1954 there was an Orissa amendment of Explanation to Order 33, Rule 1 Civil Procedure Code which provides that in determining whether such person is possessed of sufficient means the property that is the subject matter of the suit shall be always excluded. In the present case none of the four items of properties referred to in the Order forms the subject-matter of the present suit. Therefore this contention on behalf of the plaintiff also fails.
5. The result therefore is that this applicationmust be allowed. The order under revision is setaside. The lower court is directed to proceed inaccordance with the law and pronounce on theapplicant's pauperism after considering all the factsand circumstances of the case whether the plaintiff can raise sufficient money to pay the court-fee.In case the parties want to adduce further evidence,it is left to the discretion of the lower Court, considering all the circumstances, to allow or not toallow the parties to adduce farther evidence. Timrevision is accordingly allowed. No order as tocost of this application.