Bhagwat Sahay vs Krishna Sahay and Others

James, J.—This is an application for revision of the order of the Third Subordinate Judge of Patna, rejecting a petition for permission to sue as a pauper. The suit which the petitioner sought to institute prayed for partition of joint family property worth about sixty thousand rupees in which the plaintiff claimed a one fourth share. The learned Subordinate Judge found that at the time when the application was made the petitioner was in possession of sufficient means to enable him to pay the court-fee, because he was admittedly in possession of an undivided share in some part of the property mentioned in the plaint.

It is argued on behalf of the petitioner that the learned Subordinate Judge in coming to this conclusion ought to have excluded from consideration any property which formed the subject-matter of the suit.

The learned Advocate cites the decision in Ratikanta Moyra Vs. Sanaton Baidya and Others, ; but the learned Judges in that case made it clear that it was only property not in the possession of the petitioner which must be excluded from consideration by virtue of the explanation annexed to Order 33, Rule 1, Civil P.C. as forming the subject-matter of the suit. As the learned Judges say:

It is true that the words "subject-matter of the suit" have no concern with the first part of the explanation; but this does not mean that, in dealing with the first part of the section the subject-matter of the suit has to be taken into consideration; because the word "possession" which is used in that part sufficiently indicates that any amount which forms the subject-matter of the suit and is not in the actual possession of the petitioner cannot be taken into account for the purpose of determining his means.

That is to say for the determination of the question of whether a person is of sufficient means to enable him to pay the court-fee on the plaint any property of which he may be in possession will be excluded from consideration, even though it may form part of the subject-matter of his suit. It is when the Court comes to consider under the second part of the explanation to what property he may be entitled that the subject-matter of the suit has to be excluded from consideration.

The point was made clear by Sir Lawrence Jenkins in Krishna Bai v. Janardan Sundar Thakur (1906) 30 Bom 593, where it was pointed out that if part of the subject-matter of the suit was in the applicant''s possession, then the possession of that part might be taken into consideration for determination of the question of whether the applicant was in possession of sufficient means to pay the fees prescribed by law on the plaint. In the present case the Subordinate Judge has found that the property of which the petitioner was in possession was sufficient to enable him to pay the court-fee on the plaint, and this decision is not subject to revision merely because that property may have been included in the schedule attached to the plaint as forming part of the subject-matter of the suit.

This application must be dismissed with costs. Hearing fee two gold mohurs.