Chinnamani Nadar and Another vs Devagirubai Rajan and Others

Ganapatia Pillai, J.—The petitioners in this Civil Revision Petition seek to revise the order of the learned Subordinate Judge of Tutigorin

granting leave to the respondents to sue in forma pauperis. The plaint in the case contains eight schedules of properties alleged to have been

alienated by the father of the respondents. Schedule 1 consists of a house in Tuticorin town in which the family of the plaintiffs resides and which is

admitted to be worth Rs. 25,000 though there is a mortgage on this property to an extent of Rs. 20,000. Schedule 1-A consists of a small ice

factory and. items in Schedules 2 to 8 are properties which have been alienated by the father of the plaintiffs. The main relief claimed in the suit is

setting aside the alienations in so far as the plaintiff''s share is concerned. The plaintiffs claim to be Hindus. The learned Subordinate Judge quite

properly omitted to take into account the items in Schedules 2 to 8 because they are in the possession of the alienees and they cannot be looked

to, to find out the ability of the plaintiffs to pay the Court-fee due on the plaint. As regards item 1 the learned Subordinate Judge thought that the

plaintiffs themselves were not in possession of that house though they were residing in it along with their father. Obviously he considered that he

could take into account property for the purpose of assessing the ability of the applicants for leave to sue as paupers, only if that particular

property was in the exclusive physical possession of such person. That view of the learned Subordinate Judge is wrong. He has not also taken into

account the item in Schedule 1-A which is a small ice factory in respect of which Mr. Sankara Iyer tells me that his client offered to purchase the

plaintiffs'' three-fourth share therein for a price of more than Rs. 2,000 which would be necessary to pay the Court-fees due on the plaint. The

plaintiffs'' share in the factory is stated to be worth more than Rs. 2.300. I am not able to find any reference to this property in the order of the

learned Subordinate Judge. While conceding that there is some force in the argument of the learned Counsel that the learned Subordinate Judge

did not take into account the items in Schedules 1 and 1-A in assessing the capacity of the plaintiffs to pay Court-fees due on the plaint, I am of the

view that the paramount principle in a case of this kind that should be borne in mind is that it is the State that is primarily interested in questioning

the legality or correctness of the order of the learned Subordinate Judge granting leave to sue in forma pauperis. Support for this view is found in

the decision, Markatab Ali v. Madanlal AIR 1934 Lah. 295

Prima facie where the Court-fee payable on the plaint is a heavy sum running to four figures and the learned Judge has exercised his mind over the

matter, some small irregularity or mistake would not matter if on a consideration of the entire facts and the large amount payable by way of Court-

fees leave to sue in forma pauperis was granted even though any minor factor taken into account in assessing the ability of the plaintiffs to pay

Court-fees may be taken exception to.

In the circumstances of this case, I see no reason to interfere in revision with the order of the learned Subordinate Judge. This Civil Revision

Petition is, therefore, dismissed. No costs.