A. Murlidhar vs Soshalamma and Another

Palnttkar, C.J.—This is a revision petition against the order of the District judge at Mahboobnagar dated 20-8-1954 rejecting the petition of the Petitioner to sue in forma pauperis. We perused the judgment of the lower Court and heard tile arguments of the learned advocate for the Respondent. No one is present on behalf of the Petitioner and during the course of the argument a petition has been presented that the advocate for the Petitioner is not well.

We are not inclined lo allow the petition for adjournment as our opinion in the case is in favour of the Petitioner. It is clear from the judgment of the lower Court that the only ground on which the Petitioner was not considered a pauper is that his natural father is in possession of sufficient property to meet the stamp duty required for the suit; other wise it is clear that the Petitioner has not sufficient means to pay the Court-fees.

On a careful examination of the arguments of the learned advocate of the Respondent, we are of opinion that the order of the lower Court should be set aside. The question whether any relative of the pauper Petitioner has sufficient means to pay the Court-fees cannot be taken into consideration while deciding the question of pauperism. The Court under Order 33, Rule 1 has to see whether the Petitioner is or is not possessed of sufficient means to enable him to pay the prescribed Court-fees.

The fact of having a rich relation is not a fact which can be taken into consideration as enabling the pauper-Petitioner to pay the fees. Whether the Petitioner has means to enable him to pay Court-fees has been considered in certain cases when the Petitioner was in possession of landed property or other property which he could use to raise a loan or otherwise enable him to get funds to pay Court-fees. Such is not the ease of a rich relation.

The learned advocate argued that no revision can lie in such cases as it is not a question of absence of jurisdiction for purposes of Section 115, Code of Civil Procedure. We are of opinion that such irregularities fall u/s 115(c), Code of Civil Procedure. and in such cases, the lower Court would be considered to have acted with material irregularity in the exercise of its jurisdiction.

Whenever in the interests of justice it is necessary to interfere with the discretionary orders of the lower Court, the revisional jurisdiction of the High Court can be exercised. - Ramzan Ali Vs. Mt. Satul Bibi and Others, . The question whether the Petitioner is a pauper or not is not a question of weighing evidence in this case. We are taking the evidence as recorded by the learned judge of the lower Court as correct; only we are questioning the soundness of his conclusion and the discretion which he has used in disallowing the pauper petition.

In this respect, we may quote with approval the decision of the Nagpur High Court reported in - Aqbalsingh v. Jivandas AIR 1924 Nag 44(B), wherein it has been held that the Court has power u/s 115 to revise an order refusing to grant permission to sue as a pauper. Taking into consideration all the circumstances of the case, we allow this revision. As a result the pauper-petition is allowed.

Let the lower Court register the petition as a suit and proceed according to law. We make no order as to costs of this revision petition. Revision allowed.