Harekrishna Samantaray vs Tara Dibya and Another

N.K. Das, J.—This revision is directed against an order of the Munsif, Jagatsinghpur allowing a petition under Order 33, Rule 1, Code of Civil Procedure.

Plaintiff filed Title Suit No. 77 of 1976 for declaration of title and permanent injunction against the Petitioner and another Natabar. The suit was filed in forma pauperis. A Court-fee of Rs. 321.75 was to be paid on the plaint and the Plaintiff contended that she had no other means excepting certain movables worth Rs. 80/- only. In the counter, Defendant No. 2 who is the Petitioner in this civil revision contended that the Plaintiff, after death of her husband has succeeded to all the properties of her husband along with Defendant No. 2 who happens to be her son and she is in possession of about four acres of landed property worth about Rs. 15,000/-. Besides the above property, she has also movable properties worth about Rs. 5.000/-.

The Plaintiff examined herself and has not denied that she has succeeded to her husband. She states that she cannot say the extent of land owned and possessed by her husband, nor can say what was the usufruct of the land. P. w. 2 has been examined to say that the Plaintiff lives on begging. He has stated that Natabar (Defendant No. 1) is the adopted son of Plaintiff''s husband, which the Plaintiff has denied. O. P.W. 2 is a person who has his house about 100 cubits away from the house of the Plaintiff. He has stated that Plaintiff is in possession of five acres of land along with her son (Defendant No. 1). He has stated that he has gone inside the house of the Plaintiff being a neighbour. He was confronted with the question as to how much of land Plaintiff has in her possession in each Khata and his answer is that he is not able to say that, which is quite natural. But the fact the Plaintiff is in possession of some land as stated by this witness is not dislodged. In addition to the aforesaid oral evidence, Plaintiff has filed the certified copies of the record-of-rights to show the extent of land which her husband possessed. A comparison of the lands described in the plaint schedule with the copies of the records-of-rights would show that besides the suit lands, her husband was in possession of sufficient extent of lands including homestead. Not only he was in exclusive possession of those lands, but also he was jointly possessing some other lands along with cosharers. The fact that Plaintiff has succeeded to her husband stands unrebutted. Considering the oral evidence as well as documentary evidence, it is abundantly clear that Plaintiff is in possession of sufficient extent of lands besides the suit properties. The,fact mentioned in the petition filed by the Plaintiff that she has no other property excepting some movables worth Rs. 80/- is not true. Moreover, the said petition has neither been verified nor supported by affidavit.

It has been held in Shri M.L. Sethi Vs. Shri R.P. Kapur, .

Under Order 33, Rule 9, it is open to the Court on the application of the Defendant to dispauper the Plaintiff on the grounds specified therein, one of them being that his means are such that he ought not to continue to sue as a pauper. An immunity from a litigation unless the requisite Court fee is paid by the Plaintiff is a valuable right for the Defendant. It follows therefrom as a corollary that the proceedings to establish that the applicant-Plaintiff is a pauper, which will take away that immunity, is a proceeding in which the Defendant is vitally interested. This is further borne out by Order 33, Rule 6 which confers the right on the participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is not a pauper.

In Lakhyeswar Karmi and Others Vs. Padmabati Karmi and Others, , it has been held that the pauper application should contain the averments in detail about the properties held by the Plaintiff, which is the application to sue in forma pauperis. Reference has been made to provisions contained in Order 33 Rule 2, CPC which runs thus:

Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings,

As it appears, the Plaintiff has not verified the petition. She has also not mentioned the items of properties she has inherited from her husband. Therefore, the application is not in accordance with Order 33 Rule 2, CPC and, as such, is liable to be dismissed. The learned Court below has exercised his jurisdiction illegally and overlooking the aforesaid factors which have a material bearing on the question for consideration in the instant case. Therefore, I hold that the order of the learned Munsif cannot be sustained.

In the result, the revision is allowed. The order of the learned Munsif dated 26-8-1976 is set aside. The Plaintiff should pay the Court-fees in the suit. The learned Munsif is directed to fix a date and intimate the Plaintiff to pay the court-fees. Records be sent back to the Court below immediately. As there is no appearance for the opposite parties, there will be no order as to costs.

Revision allowed.