Mt. Ramnandi Kuer vs Rup Narain Singh and Others

Meredith, J.—This petition is directed against an order of the learned Subordinate Judge, Second Court, Gaya, rejecting the petitioner''s, application under Order 33, Rule 1, Civil P.C., to sue in forma pauperis.

The cause of action was based on a simple mortgage bond for Rs. 2800, in regard to which there was a claim also for interest amounting to Rs. 2600, and the court-fee payable was Rs. 427-8-0. The petitioner gave a list of her property, the value of which came only to Rs. 74-10-0. An inquiry was made by the Collector, who reported that the petitioner was a pauper. The learned Subordinate Judge however took the view that the petitioner was not a pauper, because she was obviously in possession of the valuable mortgage bond on which she sought to base her claim. In other words, he took into consideration the claim itself as part of the assets of the petitioner, and apparently upon the view that that claim was worth sufficient, if sold to a champertor, to pay the court-fees, he rejected the application.

The meaning of the word "pauper" is explained as follows in Order 33, Rule 1: "A person is a ''pauper'' when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing-apparel and the subject-matter of the suit."

The present was manifestly a case within the first part of the explanation, since a fixed court-fee was payable by law. What the learned Subordinate Judge therefore had to ascertain was not what property the petitioner might be entitled to but whether she was possessed of sufficient means to enable her to pay the fee prescribed by law for the plaint.

The word "means" can have two meanings. It may mean "That by which anything is caused or brought to pass." It may also mean "income, estate, wealth." In my view, in the explanation to Order 33, Rule 1, it is used in the second sense, otherwise the use of the qualifying adjective "sufficient" would be quite inappropriate.

No doubt, in estimating the petitioner''s means, the subject-matter of the suit can be taken into consideration in so far as the petitioner is found to be in possession of it, or any portion of it. The learned Subordinate Judge has relied upon two rulings in which this has been laid down: Bhagwat Sahay Vs. Krishna Sahay and Others, and Rajdeo Singh Vs. Jagdeo Singh, . There are numerous other rulings to the same effect, and in fact it may be taken as settled that the two clauses of the explanation must be read disjunctively, and the expression "subject-matter of the suit," which forms the concluding portion of the explanation, relates only to cases where no fee is prescribed by the law for the plaint (whatever those eases may be). It does not follow from this however that the subject-matter of the suit must necessarily be taken into consideration in determining the petitioner''s means in cases where a definite court-fee is payable. On the contrary, to quote from Ratikanta Moyra Vs. Sanaton Baidya and Others, while "it is true that the words ''subject-matter of the suit'' have no concern with the first part of the Explanation: that 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." In my opinion, it cannot be said in the present case that any portion of the subject-matter of the suit is in possession of the petitioner. She is in possession of the document, but the document is not the subject-matter of the suit. The document is the basis of the claim, but that is a different thing. The document is in no sense anything that is claimed in the suit, though it may be evidence to support the claim.

All that the petitioner can be said to possess, apart from the document, is the claim itself, the "chose-in-action." The real point which arises in this case is whether in an application to sue in forma pauperis the value of the claim itself can be taken into account in estimating the applicant''s means. In my opinion, that cannot be done, at least, unless there is evidence that a definite sum has either been paid or offered for that claim, and even then it is, in my view, extremely doubtful whether any account could be taken of such an offer. Can a man reasonably be held able to prosecute his suit, if he can only secure the wherewithal to do so by parting with his claim; if he can only sue at all by disqualifying himself from reaping the fruits of success?

In the present case it is very difficult to understand upon what basis the learned Subordinate Judge has tafyen the view that the chose-in-action, the claim, is worth more than the court-fees. Should the suit succeed, it will be very valuable. Should, however, the suit fail, it will be worth nothing. In order to come to a finding as to its present value, the Court would first have to determine the claim upon the merits, in other words, to try the suit.

No ruling has been cited before me in which it has been held that in dealing with applications of this kind the value of the claim itself, which it is sought to prosecute in forma pauperis can be taken into account. In almost all cases it would be impracticable to assign any definite money value to it.

It is manifest that the effect of allowing the value of the claim to be included in the petitioner''s means would be in practice that no one having a bona fide claim could ever be allowed at all to sue in forma pauperis, since whatever the value of the subject-matter of the suit the court-fees must only be a small proportion of that value.

The practical effect then would be that every application to sue in forma pauperis would have to be refused: or in the alternative the Court would have to try out the merits of the claim--that is really to try the suit--before coming to any decision upon the merits of the application. I am confident that that is not what is contemplated by the law.

In my judgment, the learned Subordinate Judge was not entitled to hold that the petitioner was not a pauper merely because of the fact that she had a claim, possibly a valuable claim, which she wanted to prosecute as such.

This application, therefore, succeeds, the order of the Court below is set aside, and it will now be for the learned Subordinate Judge to come to a fresh decision in the matter in the light of the observations which I have made. The petitioner is entitled to her costs, which I assess at one gold mohur.