The main legal point established in the judgment is that non-inclusion of certain assets in a pauper application, if subsequently disclosed, should be taken into account for determining pauper status under Order XXXIII R.5 (b). Deliberate and mala fide omission is a factor to be considered in exercising discretion to allow or reject permission to sue as a pauper.

1. The applicant in O. P. No. 80 of 1974 (Pauper) on the file of the Sub Court, Quilon, is the revision petitioner. He applied for permission to sue informa pauperis. But on the ground that the petitioner did not mention all his movable assets in the schedule to the pauper application the lower court passed a conditional order that if the court fee payable on the plaint is paid on or before 2nd January 1976 the petition will be registered as an original suit. Dissatisfied with that the petitioner has filed this revision petition.

2. Before passing the impugned order the applicant has been allowed to amend his pauper application by incorporating a schedule of his properties and accordingly a schedule of the properties owned by the applicant was incorporated in the pauper application. In that schedule the immovable property belonging to the petitioner and the number of encumbrances thereon were mentioned. It was also stated that the only movable property of the petitioner, namely the fishing boat, has been utterly ruined and the wreck has been abandoned in favour of the defendants and that the plaintiff has no present means to pay the court fee for the plaint claim. The objection or the respondents was that the petitioner even after getting an opportunity to amend the application failed to mention all his assets movable and immovable and therefore the application is liable to be rejected under Order XXXIII R.5 (a) of the Code of Civil Procedure. Later the petitioner was examined in support of his application. In the course of his cross-examination he was asked whether there are any movables in his house like furniture. He admitted that there are some furniture in the house and that their value can be estimated at Rs. 500. On finally hearing the matter the lower court held that the petitioner failed to disclose such movables in the schedule to the pauper

application and therefore the application to sue informa pauper is has not been framed and presented in the manner required by R.2 and 3 of Order XXXIII. Hence the application is not a bona fide one and consequently the plaint can be registered and numbered as a suit only on payment of the ad valorem court fee payable on the plaint claim. The plaint is valued at Rs. 57,030 and the advalorem court fee payable thereon comes to Rs. 4,783.

3. The contention of the counsel for the petitioner is that the lower court acted without jurisdiction in holding that the application was not framed and presented in the manner required by R.2 and 3 of Order XXXIII. Order XXXIII. R.2 specifies the particulars which should be stated in every application for permission to sue as a pauper. It should contain all the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant with the estimated value thereof should also be annexed thereto and it should be signed and verified in the manner prescribed for the signing and verification of pleadings. R.3 requires that the application should be presented to the court by the applicant in person unless he is exempted from appearing in court. After the amendment of the pauper application by the petitioner it may not be right for the lower court to hold that the application is not framed and presented in the manner prescribed by the R.2 and 3. It was stated in the application that the only movable asset namely the fishing boat is valueless and has been abandoned in favour of the respondents. If during the course of the enquiry some other movables are proved it is not a case where the application is not framed and presented as required by Order XXXIII R.2. The value of such movables will also be taken into account in finding out whether the applicant is a pauper or not and the application will have to be dealt with not under Order XXXIII R.5 (a) but under R.5 (b). Decided cases on this point are in accordance with the above view. In Sundari Devi v. Rivers Steam Navigation Co. Ltd. A. I.