A person is not entitled to continue a suit in forma pauperis if he has the capacity to pay the court fee.

S. BARMAN, J.

( 1 ) THE defendant is the petitioner in revision directed against an order of the learned Munsif, Kendrapara allowing; the plaintiff to continue the suit in forma pauperis. The plaintiff's suit was for declaration of title in respect of certain properties.

( 2 ) THE only question for consideration in this revision is whether the learned Munsif was justified in making the order allowing the respondent-opposite party being the plaintiff in suit, to continue the suit in forma pauperis. The facts are that there are four items of property alleged to belong to the plaintiff. The first item is movable worth Rs. 402/- the remaining item being immovable properties. It appears that the plaintiff had within four months after the institution of the suit had sold certain lands -- 63 decimals in area -- to his wife alleged to be benami, with regard to which the learned Munsif has not however given any finding that the plaintiff was not in possession thereof. The next item of property is 5. 09 acres of land, with regard to which there is no finding as to its actual value. Lastly there is a fourth item of property being in area 181/2 decimals which is stated to be the home-stead land but not including the residential house of the plaintiff. The plaintiff made the application for continuing the suit in forma pauperis on materials stated in his petition. He expressed his inability to pay court-fees on the grounds stated therein. He pleaded that he was not possessed of sufficient means enabling him to pay the fee prescribed as court fee in the suit. It appears that there was an application made by the defendant to the learned Munsif directing the plaintiff to get his property sold after receiving the consideration money of Rs. 470/ -. In other words, the defendant offered to purchase from the plaintiff certain properties for a consideration of Rs. 470/- presumably to enable the plaintiff to pay court-fee out of the purchase money, Surely, if the plaintiff had accepted the offer he certainly would have out of the purchase money paid the additional Court fee of Rs. 334/9/- in addition to the court-fee already paid and continued the suit. In the said application made by the defendant offering to pay Rs. 4707-as aforesaid the learned Munsif by an order dated 17, August 1957 rejected the same application with the observation that no action could be taken on the application at that stage and so the application was rejected. The learned Munsif however gave no reasons for rejection of the said offer made by the defendant. The plaintiff however chose to pursue his application for permission to continue the suit in forma pauperis.

( 3 ) IN this contest, it must be made clear that the order allowing parties to initiate or continue litigation in forma pauperis should not be lightly made. It is only in deserving cases that such indulgence should be allowed within the strict provisions of the law. On this point Mr. R. Mohanty, learned counsel appearing for the defendant, cited before me two decisions of the Patna High Court. In Mt. Jainatun Nissa Bibi v. Mt. Idrakun Nissa, AIR 1941 Pat 638 it was held that where the applicant is shown to have a share in her husband's property but which is not in her possession, the Court should not allow her to sue as a pauper without considering whether she has shown that with that share she could not raise enough money to pay the court fees. A mere conclusion on the evidence, however erroneous, will afford no ground for interference in revision but where the court in such a case fails to consider it, it amounts to a materially irregular exercise of jurisdiction justifying interference in revision under section 115 (c ). In Mt. Bibi Khudai Jatul Kubra v. Mt. Bhagalan, AIR 1950 Pat 364 a Division Bench of the Patna High Court held that the possession that is spoken of in the first portion of the Explanation to Order 33, Rule 1 Civil Procedure Code is not possession of property but of sufficient means and the