Murugan vs Sivaraman and Others

Rajamannar, C.J.—The petitioner filed an application for permission to sue in forma paupers. The court fee payable was Rs. 329-15-0. He

alleged that he was possessed of the plaint B schedule properties, which he valued at Rs. 600, but those properties were subject to an

encumbrance for Rs. 450. Therefore he did not have the means to pay the court-fee. The respondent denied that the petitioner was a pauper. They

also alleged that he had fraudulently suppressed the existence of certain moveable. The learned Subordinate Judge found that the petitioner was not

possessed of sufficient means to enable him to pay the court-fee. He also found that the petitioner was guilty of fraudulent suppression of one of his

assets, viz., two bulls. The petitioner denied having any bulls., while R.W. I, the 2nd respondent, deposed that he was possessed of bulls and

goats. The learned Judge acted on the evidence of R. W. 2, the mortgagee of the petitioner''s land, who said that the petitioner had two small bulls

worth Rs. 120. On these facts the learned judge found that there was a fraudulent suppression of assets, which must result in the dismissal of the

application under o, 33, C.P.C. He relied 0n the decisions of this Court in Kuppuswami Naidu V. Varadappa Naidu (1943) 2 M.L.J. 845= 55

L.W. 861 (1). (2) (1) and The Madras and Southern Mahratta Railway Vs. Padmanabhuni China Nagiah and Company, . (2), in support of his

conclusion. He therefore dismissed the petition. The finding that the petitioner was possessed of two bulls is a finding of fact and though I am not

satisfied with the finding, it is binding on me in revision. That finding by it self, however, would not lead to the dismissal of the application. Neither

the decision in Kuppuswami Naidu Vs. Varadappa Naidu and Others, nor that in Chellammal v. Muthulakshmi Ammal (1945) 1 M.L.J. 53=58

L.W. 21, should be understood as laying down that even the omission to mention the most insignificant moveable must itself lead to a dismissal of

the application for leave to file the suit in forma pauperies. Indeed Chandrasekhara Aiyar J. in Kuppuswami Naidu Vs. Varadappa Naidu and

Others, , referring to Mt. Chamela Kuar Vs. Pursottam Das and Others, , distinguished that case on the ground that there the omission related to

trifling moveable properties a couple of trunks and an almirah. In Ramakrishna Chetti v. Govindammal ((1954) 1 M.L.J. 26=67 L.W. 22

Venkatarama Aiyar J. discussed the scope of the said two decisions. The learned Judge pointed out that the rule laid down in those decisions must

be limited to cases where a suppression is deliberate and not bona fide. I accept that as the correct law on the point.

In my opinion, to find out whether an omission was deliberate and mala fide, one test is to ascertain whether the intention was to cancel the

omitted item, because if that were included, the Court would find that the petitioner had means to pay the court lee. To give a concrete illustration,

if the court fee payable is, say, Rs. 1000 and the petitioner seeking leave to file the suit in forma pauperis has omit-ted to disclose some moveable

property worth Rs. 50 or Rs. 100, it cannot be said that the omission was deliberate and mala fide for the obvious reason that even if he had

mentioned it, be could still have easily maintained that he was not in a position to pay the court-fee of Rs. 1000 and, therefore, he was entitled to

sue as a pauper. It is quite true that a mere statement by the petitioner that the omitted item of property is of no value would not suffice. In

Chellammal Vs. Muthulakshmi Ammal, for instance, it was said that the equity of redemption in certain property which was omitted to be

mentioned was of no value, but the learned Judges were not prepared to accept that statement. Actually it appeared in that case that the so-called

pauper had sold certain immoveable property for a sum of Rs. 1300 after she had been allowed to file the suit in forma pauperies. In the present

case, keeping this . circumstance in mind, I cannot agree with the learned Subordinate Judge that there has been a deliberate and mala fide

suppression of any item of property, assuring that the petitioner had owned two bulls. I therefore allow the civil revision petition and grant the

application of the petitioner to file the suit in forma pauperis. There will be no order as to costs.