The court held that the trial court erred in rejecting the plaintiffs' application without giving them an opportunity to explain how the properties they had left out of their application could not be considered for determination of sufficient means.

S. C. MOHAPATRA, J.

( 1 ) BOTH plaintiffs are appellants in this appeal under O. 43 R. 1 (na) Civil P. C. (5 of 1908) against order refusing permission to them to sue as indigent persons.

( 2 ) INDIGENCY is personal economic condition. Therefore, in case more than one person intend to sue as indigent persons, indigency of all persons together is to be considered. Even though one of them would be indigent or both individually would be indigent but the means possessed by them together would be sufficient to pay the court-fee payable, permission ought not to be granted. Since indigency is personal, legal representatives cannot take advantage of the indigency of their predecessor in interest who died applying for permission or continued the suit after being permitted. See 1973 (2) C. W. R. 1792 Smt. Annapurna Das v. Manoranjan Rath, 1987 (1) O. L. R. 313 Bauli Sahu v. Bidyadhar Satpathy. Similarly sufficiency of means; who are to conduct the suit on behalf of plaintiff like guardian, husband, mother or father or are interested in the result of the suit would not be ground to refuse or withdraw permission where plaintiff is indigent. AIR 1978 Orissa 37 Bhubaneswar Misra v. Sakuntala Devi, (1978) 45 C. L. T. 431 (Hara Satnami v. Dhaneswar Putel and (1987) II O. L. R. 545 Santosh Samal v. Baja Achilu.

( 3 ) WHILE enabling a person to sue as indigent person under O. 33 R. 1 C. P. C. in Explanation meaning of indigent person has been explained. Portion material for this case reads as follows :-"explanation 1 - A person is an indigent person (a) If he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or. "term 'not possessed of sufficient means' to enable him to pay the fee prescribed is the requirement for permission to sue as indigent person. A person desiring to take the privilege has to make an application to Court for permission. R. 2 provides for the contents of such application. It is provided that the application is to be annexed with a schedule of any movable or immovable property belonging to the applicant. O. 33 R. 5 C. P. C. (a) and (b) provides that an application is to be rejected in case the same is not framed as provided in R. 2 or where the applicant is not an indigent person. Therefore, Court considering the application filed is to consider whether the application is framed as required under R. 2 and in case it is so framed whether the applicant is an indigent person as provided in Explanation X of R. 1.

( 4 ) EVEN where permission has been granted, it can be withdrawn as provided in R. 9. One of the grounds for withdrawal is where it appears that means of the person permitted are such that he ought not to continue to sue as an indigent person.

( 5 ) DEFENDANT has a right to raise objection to the application or where permission has been granted to challenge the same and also to apply for withdrawal of permission as provided in R. 9. Such right has been recognised in AIR 1972 SC 2379 Shri M. L. Sethi v. Shri R. P. Kapur, 1977 CWR 612, (Harekrushna Samantaray v. Tara Dibya and (1985) 59 CLT 185 Benudhar Jena v. Prabir Chandra Masumdar.

( 6 ) ALTHOUGH previous to amendment of Civil P. C. (5 of 1908), by Act 104 of 1976 subject matter of the suit could have been taken into consideration in certain circumstances to find out whether applicant has means to enable him to pay the fee prescribed, after amendment there is no scope for the same. However, for determining the means of the applicant same standard as applied previously in case of subject matter of the suit would be applicable to other properties not subject matter.

( 7 ) IN the aforesaid background, where an application for permission has been filed, court is to examine if the same is framed as required under R. 2. It is true that the application is to contain the particulars required in regard t