The principle of res judicata is not applicable to proceedings under Order XXXIII, Rule 9, C. P. C. and the past financial condition of a person allowed to sue as a pauper can be taken into consideration only in clear and exceptional cases where some clear documentary evidence is available as to the properties owned and possessed by the pauper.

ORDER:- This is a revision application under Section 115, C. P. C. by defendant No. 1 against the order dated 12-3-1975 passed by the Civil Judge, Saharanpur.

2. Briefly stated the facts giving rise to this revision application are that Sri R.P. Kapoor, opposite party No. 1, who will hereinafter be referred to as Sri Kapoor, had filed a suit against the State of Punjab and certain others for the recovery of Rs. 10,21,000/- on account of damages arising out of malicious prosecution. He was liable to pay a court-fees of Rs. 76,982.50p. thereon. But he moved an application under Order XXXIII, Rule 1, C. P.C. for permission to sue as pauper alleging that he was not possessed of sufficient means to defray the said court-fees. The application was moved on 6-4-1963 in the court of the Civil Judge, Saharanpur. The following schedule of property possessed by him was given in the application:

1. Unspecified half share of a residential farm house situated at the G. T. Road from Karnal to Delhi, being six miles from Karnal. The plaintiff's share in the five-roomed house was worth approximately Rs. 10,000/- but being in a farm, being joint interest and the plaintiff having no dominion over the whole house which was inseparable, the said half interest was not saleable.

2. Rs. 400/- and odd in the bank.

3. Wearing apparel worth approximately Rs. 600/-

4. Books worth about Rs. 300/-.

3. The defendants contested that application on a number of grounds, including that the plaintiff had suppressed his assets and was possessed of sufficient means to pay the court fees on his claim.

4. On 11-11-1966 the learned Civil Judge held that the property given by the plaintiff in his schedule was complete and he had not fraudulently suppressed any asset. In his opinion the plaintiff had no means to pay Court-fees. Accordingly he allowed the plaintiff to sue in forma pauperis.

5. Against the said order the State of Punjab (Defendant No. 1) came up in revision to this Court. Certain other revisions of the parties and others on the same point were also pending. All of them were heard by a Division Bench and were dismissed on 5-10-1968. The decision is reported in 1968 All LJ 1102. As regards the question whether Sri Kapoor had suppressed any assets by not disclosing them in the schedule annexed to the petition, it was observed:-

"On the uncontroverted testimony of Sri Kapoor the Court below has arrived at the conclusion that there has been no wilful or mala fide suppression of any assets of the two petitioners and the explanations given by Sri Kapoor for not showing certain items were quite convincing. It is not every suppression of assets from the schedule annexed to a pauper petition that can result in an order of refusal of permission to sue as a pauper. There may be cases of bona fide omissions also. The view consistently taken by all the courts is that if the omission of any assets from such a schedule is bona fide, it cannot be made a ground for refusing permission to sue as a pauper. The question whether there were any omissions at all and whether such omissions were not bona fide are clearly questions of fact, which have been decided in favour of the petitioners by the court below on the basis of the uncontroverted testimony of Sri Kapoor. We have also considered the explanation given by Sri Kapoor in respect of the various items of assets said to have been suppressed from the schedules and we are satisfied that the omission to mention those assets in the schedules was clearly bona fide."

They went on to say:

"As we have mentioned above, it has not been urged that the petitioners are not paupers or that they are possessed of sufficient means to pay the court fee in the various cases. That being so, we do not find any justification for interfering with the order of the court below in exercise of our revisional jurisdiction. The order of the court for that reason is just and appropriate."

6. In this manner Sri Kapoor was permitted to sue as a pauper. The defendants