1. This rule was issued to show cause why a certain order passed by the Subordinate Judge of Howrah on 24th May 1929, should not be set aside or such other or further order made as to this Court may seem fit and proper. The order complained of was passed on an application which the petitioner Provash Chandra Lahiri had made for leave to sue in forma pauperis. The order was one by which the learned Judge refused the leave asked for.
2. The circumstances that are necessary to be set out for the purposes of this rule are the following: The petitioner is a Sanitary Inspector under the Howrah Municipality. He made an application for the purpose of obtaining permission to sue in forma pauperis the Chairman and the Commissioners of the Howrah Municipality, claiming damages for wrongful dismissal from service. He claimed damages to the extent of Rs. 32,000 odd. The said amount is made up of several items amongst which there is one of Rs. 1,290 as being due to him on account of balance of money at his credit in the provident fund. On receipt of the aforesaid application notice was given by the Subordinate Judge to the opposite party. The opposite party on 2nd February 1929, submitted a statement in which it was stated that as regards the sum of Rs. 633-8-0 which was subscribed by t ho said Provash Chandra Lahiri to the provident fund it was available to him and that he could go it at any time ho chose. On 4th May 1929 the opposite party filed an additional written statement in which they stated that the provident fund money payable to the plaintiff was found to be Rs. 1,307-10-6 and that the said sum was available to the plaintiff at any time that be would ask for it. The amount of court-fees payable for the plaint in the contemplated suit is Rs. 1,590. The learned Subordinate Judge dealt with the application for pauperism by the order of 24th May 1929 in which he held that the municipality had not disputed their liability for the amount which was payable to the plaintiff on account of the provident fund and in fact were prepared to deposit it and furthermore that the municipality was also willing to pay a few rupees in excess. He was, therefore, of opinion that in as much as the said amount was available to the petitioner for payment of court-fees and inasmuch as that amount together with his other properties the value whereof amounted to Rs. 400 and odd were sufficient for the payment of the court-fees the petitioner was not really a pauper. He accordingly refused the petitioner's application for suing in forma pauperis. The question for consideration in the rule which the petitioner has obtained is whether in the circumstances which have been referred, to above it can be said that the petitioner is a pauper within the meaning of that word as used in Order 33, Civil P.C.
3. It may be mentioned here that there was an investigation made by the Collector and fiat the Collector did not oppose the application of the petitioner to be permitted to sue in forma pauperis.
4. In support of the view that the learned Subordinate Judge has taken reliance has been placed by the learned advocate, who has appeared on behalf of the opposite party, upon the decision of the Madras High Court in the case of Mahalakshmi Animal (1) and ifc has been contended by him that the words 'subject matter of the suit' to be found at the end of the explanation to Order 33, Rule 1, of the Code cannot be said to form a part of the first part of that explanation and that, therefore, in a case in which the defendant places a part of the amount for which the suit is to be laid at the disposal of the plaintiff that amount though it may form the subject matter of the suit, may and should be taken into consideration in determining the question whether the plaintiff is a pauper or not. Now the case of Mahalakshmi Animal A.I.R. 1926 Mad. 567 it is true, is a decision which supports the contention of the opposite party, though there is one point of difference between that case and the present one and that lies in the fact that there the money was actually deposited in Court and so was available to the petitioner while in the present case there was only an offer made by the opposite party to put in the money so that it might be available to the petitioner. For the purposes of the present Rule, however, I am not prepared to lay any stress upon this difference. In the case aforesaid the learned Judge, Jackson, J., sitting singly took the view that under circumstances such as those existing in that case it could be said that the petitioner was possessed of sufficient means to put in the court-fees.
5. The learned Judge relied upon a decision of the Bombay High Court, in the case of Dwarka Nath v. Madhavaru Vishvanath  10 Bom. 207 which was to the effect that if any property is found at the enquiry to be such as regards which there is really no dispute, such property cannot be regarded as part of the subject matter of the suit and if a part of the articles for which the suit is to be instituted is deposited in Court so as to be freely at the disposal of the petitioner the value of such part cannot be excluded from consideration. Certain other decisions of the Bombay High Court which to him appeared to have taken a different view were also referred to by the learned Judge, but he was not prepared to make a reference to the Full Bench on the ground that Dwarka Nath Narayans case had not been duly considered therein.
6. Now, it is true that there is a certain difficulty by reason of the wording of the explanation but it is plain enough that the wording of the first part of the explanation is very different from the wording of its second part. The first part says:
A person is a pauper when ho is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit.
and the second part says:
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.
7. The first point that strikes one is that whereas in the first part the words used are 'is not possessed of' the words used in the second past are 'is not entitled to.' In a case in which it is the second part of the explanation that has to be considered one has to see whether the petitioner is or is not entitled to property worth Rs. 100, and in order to find that out the necessary wearing apparel and the subject matter of the suit have to be excluded. In such a case, where it is a question of the petitioner's means being judged by taking into account what he is entitled to, the subject matter of the suit had to be excluded expressly by the legislature and Dwarka Nath Narayan's case  10 Bom. 207 and other cases say that property which it is contemplated to include in the suit if really available to the petitioner is not to be excluded from consideration. The first part of the explanation, however, says that the applicant is to be treated as a pauper if he is not possessed of sufficient means to enable him to pay the court-fee. It is actual possession or power of control over the amount necessary for the payment of court-fees that is the question that has to be considered in connexion with this part of the explanation. It is true that the words 'subject matter of the suit' have no concern with the first part of the explanation; but this does not mean that in dealing with the first part of the section the subject matter of the suit has to be taken into consideration; because the word 'possession' which is used in that part sufficiently indicates that any amount which firms the subject matter of the suit and is not in the actual possession of the petitioner cannot be taken into account for the purposes of determining his means.
8. Again, in considering the question of pauperism one must look at the matter as it stood at the date when the application was made. If the circumstances of, the petitioner on the date of the said application bring him within the terms of the explanation and are sufficient to have him declared as a pauper, the immunity that the law confers upon him for the purpose of court-fees will be enjoyed by him till the termination of the suit or until such time when sufficient materials would be forthcoming to justify an order cancelling the permission. These and other considerations which have been very well pointed out in the case of Bai Balagauri v. Motilal Ghelahhai A.I.R. 1923 Bom. 247 sufficiently indicate that even in regard to cases coming under the first part of the explanation the subject matter of the case cannot be taken into consideration and any amount which is not actually in the petitioner's possession, cannot be taken into account in making the calculation. We are of opinion, therefore, that the view which the learned Judge has taken cannot be supported and that the petitioner upon the facts to which reference has been made is entitled to institute the suit in forma pauperis. In view of the circumstances to which which we have already referred it seems to us desirable that the amount which the opposite party has offered to the petitioner on account of his provident fund dues should not be allowed to be withdrawn by the petitioner or spent in any other way until the disposal of the suit. We accordingly make an order to the effect that while the Subordinate Judge should grant the petitioner's application he would at the same the issue injunctions on the petitioner as well as the opposite party restraining them respectively from with drawing or parting with the amount of Rs. 1,307-10-6 which the opposite part offered to pay the petitioner till such time as proper orders are passed with regard to court-fees after the termination of the suit. The Rule is made absolute in the above terms. We make no order as to costs of the Rule.