The court should take a liberal view in matters where the question of court fees is involved and the plaintiff is a non-earning member.

( 1 ) HEARD learned counsel for the parties.

( 2 ) THE plaintiff/appellant filed an application under order 33 Rule 1 CPC seeking permission for institution of the suit without paying the court fees. The trial court dismissed the appellants application by order dated 16. 3. 2002 holding that the appellant is not an indigent person and also that plaint does not disclose the cause of action.

( 3 ) ACCORDING to the learned counsel for the appellant, the appellant clearly alleged that she is dependent on her husband and her husband also has meager income of Rs. 1500/-per month. The trial court committed serious error of law and fact in dismissing the appellants application on the ground that the income of the husband of the appellant as shown by her appears to be wrong because the husband of the appellant is paying school fees of their daughters and is paying premium for the insurance policy. It is also submitted that while dismissing the application, the trial court exceeded its jurisdiction and decided the claim of the plaintiff raised in the plaint on merit after deciding the question of fact as well as debatable questions of law which, according to learned counsel for the appellant, is impermissible in law.

( 4 ) LEARNED counsel for the respondent no. 5 vehemently submitted that the appellant herself came up with the case that since her husbands income is meager, therefore, she is pauper and the Court below found that the appellant failed not only in proving the meager income of her husband but in fact he is man of strong financial position. It is also submitted that the Court can examine the cause of action while deciding the application seeking permission to sue as indigent person.

( 5 ) I have considered the submissions of the learned counsel for the parties and have perused the impugned order. It is not in dispute that no evidence has been produced to contravene the fact that the appellant herself has no income. For her husbands income also, the court assumed some facts on the basis of the facts that he is paying fees of his daughters and is paying premium of insurance policy and he is depositing Rs. 70,000/- per annum in the bank account. But at the same time, ignored the important material fact that such investments are made to save the income tax liability only.

( 6 ) IT would also be relevant to mention here that no evidence has been produced that the appellant herself has income. Even otherwise, suit valuation is Rs. 33 lakhs and even from the means of appellants husband, it is not possible to pay the court fees. So far as the question of lack of cause of action is concerned, that appears to be a premature decision because of the reason that it cannot be said from the plaint allegations that the plaint is not disclosing cause of action. It appears from the reasons given by the court below itself that the court below decided the question of law also by referring to certain books on surgery. The court cannot decide the issue of law in this manner in an application filed for seeking permission to institute the suit as an indigent person. Otherwise also, a liberal view should have been taken by the court below in such a matter where the question of court fees is involved and the plaintiff is a non-earning member.

( 7 ) IN view of the above, this appeal is allowed, the impugned order dated 16. 3. 2002 is set aside and the application filed by the appellant under Order 33 Rule 1 cpc is allowed. The appellant is permitted to institute the suit without filing the court fees.