Kalimuthu Servai and Others vs Govindaswami Servai and Another

Anantanaryanan, J.—This proceeding in revision is directed against the order of the learned Subordinate Judge of Kumbakonaro in O. P.

No. 5 of 1959, permitting the petitioner in the court below to sue in forma pauperis.

The learned Subordinate Judge correctly stated that the short point for consideration was whether the petitioner had the necessary means to pay

the court-fee due on the plaint. The oral evidence is within a very short compass. I see from the records that an objection was filed by the State, in

which it was affirmed that the petitioner in the court below owned certain properties and trees, which would have enabled him to pay the court fee.

The learned Judge was apparently unwilling to act upon the evidence of the Karnam of Arayapuram (R. W. 1) and of the Karnam of Papanasam

(R. W. 2) who spoke about the properties possessed by the petitioner in the court below.

It is not clear why precisely the learned Subordinate Judge came to the conclusion that the petitioner did not have the means to pay the court fee in

this particular case. The learned Judge correctly states the law that the fact that the petitioner might attempt to raise credit or a loan by the

alienation of items forming the subject matter of the suit itself, is no criterion. But the order does not make it clear whether the learned Judge was

justified in holding that the properties referred to by R. Ws. 1 and 2 in their testimony really comprised Only the subject matter of suit, or included

other independent properties also.

But, however this may be, the true principle in all such cases is that it is primarily for the State to challenge the correctness of such orders

granting leave to sue in forma pauperis, and as it is the State which is mainly interested in the payment of the full court fee by persons who are able

to do so. Reference may be made to Chlnnamani Nadar v. Devagirubai Rajan, 71 Mad LW 43 the judgment of Ganapatia Pillai J. briefly reported

in 71 Mad LW 43. Hence I do not think that there is any justification for interference in revision, and the revision petition is dismissed. Under the

particular circumstances, I direct that the parties shall bear their own costs.