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Aminabibi, W/O. Mohmed Yusuf Hatia Vs. Havabibi D/O. Ahmed Yusuf Musaji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR339
AppellantAminabibi, W/O. Mohmed Yusuf Hatia
RespondentHavabibi D/O. Ahmed Yusuf Musaji and anr.
Excerpt:
- - she also bad clarified that those properties were in possession of her brothers and their wives and that they were not giving any share therefrom to her. ,the learned judge was of the view that as she was possessed of these properties and as she bad failed to disclose these facts in her application, she was not entitled to sue as a pauper......filed by the original plaintiff-applicant of a pauper application no. 182 of 1976 before the joint civil judge (s.d.) surat, who had rejected her prayer for allowing her to sue in forma paauperis. the above-mentioned civil application is filed for the stay of the further proceedings.2. the applicant had filed the above application. her suit was for the recovery of her ornaments and clothes worth rs. 50,000/- and in the alternative to recover rs. 50,000/- as the price of the said ornaments and clothes. her application for pauperism was resisted by the would be defendants. the learned judge rejected the application on two counts. firstly, the learned judge found from the evidence of the applicant herself that she had some share in a house at rander and also in some land on the surat-rander.....
Judgment:

N.H. Bhatt, J.

1. The above appeal from order is filed by the original plaintiff-applicant of a pauper Application No. 182 of 1976 before the Joint Civil Judge (S.D.) Surat, who had rejected her prayer for allowing her to sue in forma paauperis. The above-mentioned civil application is filed for the stay of the further proceedings.

2. The applicant had filed the above application. Her suit was for the recovery of her ornaments and clothes worth Rs. 50,000/- and in the alternative to recover Rs. 50,000/- as the price of the said ornaments and clothes. Her application for pauperism was resisted by the would be defendants. The learned Judge rejected the application on two counts. Firstly, the learned Judge found from the evidence of the applicant herself that she had some share in a house at Rander and also in some land on the Surat-Rander road, they being the properties of her father, who had died about two years prior to her date of deposition. She also had admitted in her cross-examination that those two properties were in all worth Rs. 30,000/- and that her three sisters and two brothers were entitled to the said two properties. She also bad clarified that those properties were in possession of her brothers and their wives and that they were not giving any share therefrom to her. ,The learned Judge was of the view that as she was possessed of these properties and as she bad failed to disclose these facts in her application, she was not entitled to sue as a pauper. The applicant is a Muslim woman not expected to know the intricacies of law. While she presented her application, she might not be in know of her share in the properties. Here non-disclosure cannot be dishonest or intentional because were it so, she would not have readily admitted those facts in the course of her cross-examination. Moreover, the learned Judge should have taken note of the fact that those properties were in the possession of her brothers and their wives, who were not even acknowledging her right to those properties. So, non-disclosure of her small fractional share in those properties was not because of any ulterior motive. There is nothing to show that she is in a position to raise any loan or amount on the security of her small share in those two parcels of properties. Order 33 Rule 5 of the Civil Procedure Code no doubt enjoins upon the court to dismiss an application which does not fulfil the requirements of Rules 2 or 3, but it cannot be stretched to mean that any innocent, unintended accidental slip must be visited with the rigours of dismissal of an application. This sort of rigid interpretation strikes at the very root of the provisions relating to pauperism. A person is said to be an indigent person if he is not possessed of sufficient means to enable him to pay the fees prescribed by law to file a suit. Despite her having that small share in the two properties, in possession of her brothers, who are disowning her interest therein, it cannot be said that she is possessed of such properties which would enable her to pay the requisite court fees if she has to wait for realising her share in those properties and defer the filing of the present suit, she would perhaps miss the bus for all time to come. I wish that the courts below would always take a broad view of such situations and will not deal with these benign provisions with rigidity of the type manifest in this case. Mr. Thakker who appeared for the applicant through the legal aid committee, was fair enough to state before me that if the respondents or anyone else was at any time ready to advance loan to the applicant on the security of her share in those parcels of properties, she at any stage would be willing to pay the court fees needed for the purpose. I do not think that the present respondents, the would be defendants, are ready to oblige her that way.

2.1 The result is that the appeal from order is allowed. The impugned order passed by the learned Judge is set aside. The applicant is declared to be an indigent person in terms of Order 33 of the Civil Procedure Code and she is given permission to prosecute the said suit in forma pauperis. There will be no order as to costs of this appeal. In view of this decision, no fresh order is called for in the civil application, which is also hereby disposed of with no order as to costs.


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