ORDER :- This revision is directed against the order of the lower Court granting permission to the first respondent to sue in forma pauperis. In this revision the learned counsel for the petitioner contends that the first respondent has sufficient means to pay the court-fee, and that the lower Court was in error in holding that he has no sufficient means. It is pointed out that one of the items in respect of which partition is claimed is a house property worth Rupees 25,000, that the plaintiff's half share will easily be Rs. 12,500 and that the Court has not taken the value of that item while determining the question of pauperism of the first respondent. The trial Court, in its order, has stated that the first respondent is a clerk in a lorry service drawing a sum of Rs. 200 per month, that he has no properties other than the properties which are the subject-matter of the suit, and that the court-fee payable being Rs. 3169.50, the first respondent should be granted leave to sue in forma pauperis. It is true that the lower Court mentions that the first respondent will have a share along with his father in the residential terraced house shown as item 10, which has been valued at Rs. 8000 in the plaint. But the lower Court has not taken that into consideration while considering the means of the first respondent, presumably for the reason that the said house is the subject-matter of the suit. This is clear from the observations made by the

lower Court that the first respondent is not being maintained by his father, and that he is being brought up by his grandfather at Pondicherry. From these observations, it could be inferred that the lower Court felt that his right to a half share of the house, which he seeks to establish in this suit should not be taken into consideration.

2. The learned counsel for the petitioner contends that it is not a universal rule that the subject-matter of the suit should always be excluded in considering the question of pauperism of the plaintiff. He relies on the decision in Dhananjai Prasad v. Rajkeshwar Singh, AIR 1947 Pat 34 and a decision of this Court in Papammal v. Seethammal, AIR 1940 Mad 754. In the first case, the Court has pointed out-

"It is now well settled that, unlike the second portion of this explanation, (explanation to Order 33, Rule 1, C.P.C.) the first portion permits the subject-matter of the suit being taken into consideration in determining whether the applicant is a pauper."

But the learned Judges followed it up by saying-

"It does not follow, however, that the subject-matter of the suit must be taken into account in all cases."

As a matter of fact, on the facts of that case, the Court refused to take the subject-matter of the suit into consideration for finding out the means of the plaintiff for the purpose of payment of court-fee. In the second case, the question was whether the plaintiff had a saleable interest in certain items of the suit property, and this Court held that the value of the subject-matter of the suit need not always be excluded from considering the question of pauperism under explanation 1 to Order 33, Rule 1, C.P.C., and that it would be contrary to the spirit of Order 33, C.P.C. if the plaintiff could ignore his saleable interest in a property which is not questioned by the defendant in the suit. Even assuming whether item 10 of the suit properties in which the plaintiff claims an interest should be taken into account for finding out the means of the first respondent, still it has to be found out whether there will be an immediate purchaser for that undivided share which the plaintiff has yet to reduce to his exclusive possession for which purpose he has filed the present suit. The difficulty of finding a suitable purchaser for the alleged undivided half share of the plaintiff in item 10 which is a residential house has also to be taken into consideration. As pointed out by the lower Court, the plaintiff is not in joint enjoyment of that item along with his fath

Click Here to Read the rest of this document