Balasubramaniam and Another vs Rathinam and Others

Ismail, J.—This is a petition to revise an order of the learned Subordinate Judge, Tiruchirapalli, dated 13-3-1967 declining to grant

permission to the petitioners to sue in forma pauperis in O. P. No. 57 of 1965 on his file. In the proposed suit two sets of properties, namely, A

schedule and B schedule properties, are included, and the case of the petitioners is that both the schedule properties belong to their father

Rajagopala Chettiar who was impleaded as 12th respondent in the said O. P. In 1931 Rajagopala Chettiar executed a deed of settlement in favour

of his mother Rukmani Ammal in respect of A schedule properties. Under the terms of the document Rukmani Ammal was to enjoy the A schedule

properties for her life without powers of alienation and after her life time one half of the properties was to devolve on the petitioners and the other

half of the properties, on the brother of the 12th respondent. Subsequently, it is alleged, that Rajagopala Chettiar along with Rukmani Ammal

executed a further document under which one half of A schedule properties which was to devolve on the petitioners was made over to the sons of

Rajagopala Chettiar''s brother. By a document dated 2-8-1945, the properties were sold in favour of one Mani Iyer and respondents 1 to 10 are

the legal representatives of the said Mani Iyer. The prayer for the petitioners in respect of A schedule properties was for partition and possession

of the petitioner''s half share therein.

With regard to B schedule properties the allegation of the petitioners is that their father 12th respondent settled the vested remainder in the

properties on the petitioners herein, retaining the right of enjoyment for his life. The further allegation of the petitioners in regard to the B schedule

properties is that the 12th respondent ignoring the rights conferred on the petitioners under the settlement deed is trying to deal with the properties

and thereby a cloud has been cast on the title of the petitioners to the vested remainder in B schedule properties, and that therefore it has become

necessary for them to obtain a declaration to dispel the cloud.

Respondents 1 to 11 opposed the application filed by the petitioners to sue in forma pauperis. They contended that the B schedule properties

were deliberately included in the O. P. so that the petitioners may claim to be paupers and get permission of the court for instituting the suit in

forma pauperis. The 12th respondent, the father of the petitioner, did not appear in the proceeding. The learned Subordinate Judge, by his order

sought to be revised, came to the conclusion that in view of the non-appearance of the 12th respondent, it was clear that he had no defence to the

case of the petitioners with reference to B schedule properties and consequently the said properties fell within the scope of the Explanation (ii) to

Order XXXIII Rule 1 C. P. C., that the petitioners had not satisfied the learned Subordinate Judge that they could not raise enough funds by

mortgaging their rights over B schedule properties, and that in this view the petitioners could raise the necessary funds by mortgaging their rights

over the properties considering that they are valuable properties. It is to revise this order the present civil revision petition has been filed and the

learned counsel for the petitioners contends that the conclusion of the learned Subordinate Judge that B schedule properties fall within the scope of

Explanation (ii) to Order XXXIII Rule 1 is illegal.

The sole question for consideration in this case is whether B schedule properties fall within the scope of Explanation (ii) to Order XXXIII Rule

If it is so, then naturally this court cannot interfere with the conclusion of the learned Subordinate Judge that the petitioners could raise the

necessary funds by mortgaging their rights over B schedule properties and that P. W. 1 has not satisfied him that he could not raise enough funds

by mortgaging the rights of the petitioners over B schedule properties. I am of opinion that the conclusion of the learned Subordinate Judge that B

schedule properties fell within the scope of Explanation (ii) to Order XXXIII Rule 1 cannot be supported. The said Explanation is in the following

terms--

Any part of the subject matter of the suit which the opposite party relinquishes and places at the immediate disposal of the plaintiff shall be taken

into account in considering the question of the possession of sufficient means of the plaintiff"".

The learned Subordinate Judge observes--

P. W. 1 had stated in his evidence that his father was denying their rights over the B schedule properties and that he was even trying to dispose of

those items by requesting one broker Kuppuswami Chettiar to find a purchaser for those items. The 12th respondent has not appeared at this

stage at all to deny or affirm the averments made in para 13 of the petition. The petitioners have not even chosen to examine the said Kuppuswami.

Moreover, if respondent 12 was really disputing the title of the petitioners over the B schedule properties one would expect him to have made his

appearance. The fact that P. W. 1 had issued the original of Ex. A. 1 while living in B schedule item 1 where the respondent 12 is now residing

would go a long way to show that the present version of P. W. 1 that he is staying with his sister at Salem for the last four and half years cannot be

believed. In these circumstances, the non-appearance of respondent 12 would lead one to the inference that he has himself no defence so far as the

B schedule items are concerned. Therefore, the B schedule properties would be considered to decide the question whether the petitioners have

sufficient means to pay the court-fee as per Explanation 2 to Order 30 Rule 1 C. P. C.

In my view, the non-appearance of the 12th respondent at the stage of deciding the question whether the petitioners could be permitted to sue in

forma pauperis cannot lead to any inference that the 12th respondent had no defence with regard to the claim of the petitioners in respect of B

schedule properties. It is open to the 12th respondent, if he is so advised, to contend in the suit that the claim of the petitioners in respect of B

schedule properties is not available or valid. Therefore, merely because the 12th respondent has not appeared at this stage, the learned

Subordinate Judge cannot come to the conclusion that B schedule properties fall within the scope of Explanation (ii) to Order XXXIII Rule 1. It

may be noted that the Explanation makes it clear that the opposite party must relinquish and place at the immediate disposal of the plaintiff the

property concerned. It cannot be said that in this case merely because the 12th respondent has failed to appear at this stage he has relinquished his

claim, if any, in B schedule properties and placed the same at the immediate disposal of the petitioners. Mr. Srisaliam, the learned counsel for the

respondents, contended that it is always in the discretion of the court whether it will take into account any property or not for the purpose of

granting permission to a petitioner to sue in forma pauperis, and that in this case the learned Subordinate Judge has exercised his discretion and

considered that B schedule properties can be taken into account for the purpose of granting or refusing permission to the petitioners to sue in forma

pauperis. In support of his contention he relied on a decision of this court in Poonuwsamy Maistry v. Venkatarama Chetty, 1961-2 Mad LJ 243 .

I am unable to accept this contention. Whether any property should be taken into account for the purpose of granting or refusing permission to sue

in forma pauperis, or not will depend on whether it falls within the scope of Explanation (i) or Explanation (ii) to Order XXXIII, Rule 1.

Explanation (i) (b) makes it clear that the property which is the subject matter of the suit cannot be taken into account and the question of taking

into account any property will arise only when the property falls within the scope of Explanation (ii). The decision relied on by the learned counsel

for the respondents does not purport to deal with this point and consequently it if of no assistance to him.

When the matter was taken up In the first instance, in view of the fact that the payment of court-fee is involved, I ordered notice to the

Additional Government Pleader. In pursuance of the notice he has now appeared. He contended that the learned Subordinate Judge has

proceeded to deal with the matter on the basis that B schedule properties did not form the subject matter of the suit and if that be the case his

order would not call for interference, No doubt the learned Subordinate Judge referred to the contention of respondents 1 to 11 that B schedule

properties were deliberately and unnecessarily included in the O. P. for the purpose of claiming the privilege of filing the suit in forma pauperis and

that B schedule properties need not form Part of the subject matter of the O. P. However the learned Subordinate Judge has not come to the

conclusion that B schedule properties did not form part of the subject matter of the suit. On the other hand, the extract from his order given above

will clearly show that he proceeded to treat the properties as forming part of the subject matter of the suit and then falling within the scope of

Explanation (ii). In view of this I am unable to accept the contention of the learned Additional Government Pleader.

In these circumstances, I am of opinion that the learned Subordinate Judge failed to exercise the jurisdiction vested in him. I allow the civil revision

petition, set aside the order of the learned Subordinate Judge and grant permission to the petitioners to file the suit in forma pauperis. No order as

to costs in the civil revision petition.