1. This revision application is directed against the order of the learned Civil Judge (J. D.) Dhoraji, refusing leave to the Petitioner to sue in forma pauperism The suit was filed by the petitioner against her sisters and others for partition and possession of her share from the joint family properties belonging to the petitioner and respondents Nos. 1, 2 and 3. As the Petitioner was not in a Position to pay court-fees, she applied for leave to sue in forma pauperis The trial court after hearing the evidence of the petitioner refused permission as the trial court found that the petitioner was residing with her husband who has sufficient properties to pay court-fees in question This order of the trial court is the subject-matter of this revision before me.
2. At the time of hearing of this revision application Mr. P. K. Parekh the learned advocate appearing on behalf of the petitioner pointed out that the learned civil Judge has failed to exercise his Jurisdiction by inquiring into something not directed by the Legislature and has failed to make inquiry Which the Legislature directed him to do. In submission of Mr. Parekh the learned civil Judge was clearly in error in refusing leave on the ground that the petitioner's husband was the owner of sufficient properties and. therefore, the petitioner was in a Position to Pay the court-fees in question. On behalf of the respondents. Mr. S. M. Shah the learned advocate urged before me that this court should not in exercise of its revisional. jurisdiction under Section 115 of the Civil Procedure Code interfere with the finding of the trial Court. Mr. Shah has in support of his contention drawn my attention to the decision of Supreme Court in Shri M. L. Sethi v. Shri H. P. Kapur. : 1SCR697 : . where the Supreme Court was concerned with an order made by the High Court remanding the matter to the trial court for Purposes of holding a fresh inquiry into the question of Pauperism after allowing certain applications made by the pauper for discovery of certain documents. His Lordship Methew J. speaking for the Court referred to the various decisions of the Supreme Court and tried to analyse and distinguish between the jurisdictional fact and non-Jurisdictional fact. In that connection a reference was made to Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147. The paragraphs from the judgments of Lord Reid and Lord Pearce were quoted and which read as under:-
'But there are many cases where although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take under the provisions setting it up it had no right to take into account. I do not intend this list to be exhaustive.'
3. In the same case, Lord Pearce said:-
'Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions Precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice, or it may ask itself the wrong questions, or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fall to make the inquiry, which the Parliament did direct. Any of these things would cause its purported decision to be a nullity.'
Mr. Justice Mathew thereafter proceeded to say; The Dicta of the majority of the House of Lords in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words. The extent to which we have moved away from the traditional concept of jurisdiction. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saving that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as 'basing their decision on a matter with which they have no right to deal', 'imposing an unwarranted condition, or 'addressing themselves to a wrong question'. The majority opinion in the cam leaves a court or tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined ,Only by construing the empowering statute which will give little guidance. It is really a question of how much latitude the court is prepared to allow. In the end it can only be a value judgment (see H. N. R. Wade, 'Constitutional And Administrative Aspects of the Anisminic case'), Law Quarterly Review, Volume 85 1969, p. 198). Why is it that a wrong decision on a question of limitation or res judicata was stated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata. would oust the jurisdiction of the court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was, considered as vital by the Court. And there is no yard-stick to determine the magnitude of the error other than the opinion of the Court.'
As has been stated by Lord Pearce in his judgment that if a tribunal itself asks a wrong question or takes into account matter. Which it was not directed to take into account and steps outside its jurisdiction and turns its inquiry into something not directed by Parliament and fails to make the inquiry which the Parliament directed. His Lordship Justice Mathew ultimately said that in the end it can only be a value judgment and there is no yardstick to determine the magnitude of the error other than the opinion of the Court. Order 33. Rule 1 enjoins an inquiry into the financial condition of a person applying for leave to sue in forma pauperis. Explanation to Order 33 Rule 1 defines a Pauper as a person who is not possessed of sufficient means to enable him to pay fees prescribed by law for the suit or where no such fee is prescribed when he is not entitled to property worth Rs. 500/- other 'than his necessary wearing-apparel and the subject-matter of the suit. In other words, the Court has been enjoined to inquire into the means of the -person who applies for leave to sue in forma pauperis. In the instant case, the Court has to inquire into the means possessed by the petitioner who has filed the suit for -partition and share in the joint family property against her sisters. The Court in trying to consider the property of her husband was turning the inquiry. As said by Lord Pearce:-
'It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct.'
In my opinion therefore the learned Civil Judge has failed to act beyond his jurisdiction in considering the means possessed by the petitioner's husband for purposes of determining the question, whether the petitioner was entitled to leave to sue in forma pauperis. As held by the Bombay high Court in Bai Chandan v. Chhotalal Jekisondas AIR 1932 Bom 584 that if the Court having jurisdiction acts illegally or with material irregularity in deciding the question of pauperism, the High Court can under Section 115 of the Civil Procedure Code interfere with such an order. The relevant head-note reads as under.
' The plain meaning of Clause (c) seems to be that revision lies when the court having jurisdiction has exercised it but in so exercising it has acted illegally or with material irregularity. Where there is a willful disregard or conscious violation by a Judge of a rule of law or procedure, the High Court will have jurisdiction to interfere.'
In that view of the matter, therefore, the order of the learned Civil Judge should be set aside and this revision application is allowed. The petitioner is granted leave to sue in forma pauperis. The rule is made absolute. There should be no order as to costs.
4. Revision allowed.