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Sarojini Dasi Alias Patal Dasi Vs. Bhola Nath Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal721,24Ind.Cas.792
AppellantSarojini Dasi Alias Patal Dasi
RespondentBhola Nath Das
Excerpt:
civil procedure code (act v of 1908), section 115, order xxxiii, rule 5 - application for permission to sue its pauper rejected--defective procedure--revision--high court going into evidence and setting aside lower court's order. - .....to set aside an order by which the court below has refused an application by the petitioner for leave to sue in forma pauperis.2. the plaintiff is the wife of the defendant and seeks to sue him for recovery of the price of ornaments and other articles which she alleges have been wrongfully withheld from her by her husband. she values the claim at rs. 781-8 for which a court-fee of rs. 59-8 has to be paid on the plaint. her allegation is that there were differences between her and her mother-in-law, that as a result she has been expelled by her husband from his house and that she is not possessed of sufficient means to enable her to pay the fee prescribed by law for the plaint. the defence substantially is that on the 17th november 1912, she was expelled for misconduct, and that she.....
Judgment:

1. We are invited in this Rule to set aside an order by which the Court below has refused an application by the petitioner for leave to sue in forma pauperis.

2. The plaintiff is the wife of the defendant and seeks to sue him for recovery of the price of ornaments and other articles which she alleges have been wrongfully withheld from her by her husband. She values the claim at Rs. 781-8 for which a Court-fee of Rs. 59-8 has to be paid on the plaint. Her allegation is that there were differences between her and her mother-in-law, that as a result she has been expelled by her husband from his house and that she is not possessed of sufficient means to enable her to pay the fee prescribed by law for the plaint. The defence substantially is that on the 17th November 1912, she was expelled for misconduct, and that she had on her person at the time ornaments of the approximate value of Rs. 250. In the course of the evidence, it was also sought to be established on behalf of the, husband that, since her expulsion, she had received money, from a person who had redeemed ornaments kept in pledge with her. Reliance has not, however, been placed in this Court on this allegation, because there is no evidence to show that the loan transaction mentioned was carried on with her own money. On the other hand, the suggestion has been made that the money really belonged to her husband, so that even if it be assumed that she has obtained any money from the debtors, the money clearly cannot be taken into account as has been erroneously done by the Court below to determine whether she was possessed of sufficient means to enable her to pay the Court-fee.

3. The question remains whether, on the day who a the application for leave to sue in forma pauperis was made, that is, on the 6th May 1913, the petitioner was a pauper, as alleged by her. The Court below has not determined this question, but has merely found that more than six months previously she ran away with some ornaments : this, however, she denies, and actually seeks to sue to recover the price of those very ornaments amongst others. As the order of the Court below is thus materially defective, we have had the evidence read to Rs. The circumstances as disclosed therein may be brietly stated. The plaintiff alleges that she was expelled on the 17th November 1912, that she has no money, and that since her expulsion she has managed with great difficulty to care a livelihood by making paper packets. She seeks to recover the value of a number of ornaments which she alleges are still in the custody of her husband and have been unlawfully withheld by him. The defendant states with regard to some of the ornaments claimed,, that they were taken away by her, and as regards the other's, he denies that they are with him. There is no tangible evidence to show that the plaintiff was possessed of sufficient means on the date of the application which would enable her to pay the necessary Court-fee. The application also is not opposed by the Government. Under all these circumstances, we hold that leave ought, to have boon granted to the petitioner to sue in forma pauperis.

4. The result is that this Rule is made absolute, the order of the Court below set aside and the plaintiff allowed to sue in forma pauperis. The plaint will be registered and the suit tried on the merits in due course. There will be no order for costs.

5. In view of the opinion on the merits of the case, already expressed by the learned Munsif who has dealt with the application for leave to sue in forma paupsris, we direct that the suit be heard by some other Munsif at Sealdah, or if no other Munsif is available there, by a Munsif at Alipore, to be selected by the District Judge.


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