ORDER
1. This is an application in revision from an order refusing to grant leave to the applicant to sue as a pauper. The applicant's own case in the plaint was that he was entitled to a large property as a member of the joint Hindu family which yielded a large income, but that the same had been denied to him. The learned Judge was not satisfied that the applicant was not able to raise money on the security of his share in the joint property so as to pay the prescribed court, fee and has remarked that the applicant did not prove that he was not able to raise any money on the security of his share claimed in the suit by partition, (and) as such has not the means to pay the fee prescribed.
2. In revision it is contended that the learned Judge was quite wrong in taking into account the subject matter in dispute, because the property must always be excluded when the question has to be considered whether the applicant is a pauper or not. Great reliance is placed on Balagauri Bai v. Moti Lal A.I.R. 1923 Bom. 247, in which case the plaintiff who had applied for leave to sue in forma pauperis was seeking to recover in her suit certain ornaments and maintenance allowance; the defendant actually produced in Court the ornaments and cash which, he admitted, belonged to the plaintiff and which was far in excess of the sum required for the payment of the court-fee. The Court below naturally took into consideration this fact and held that the plaintiff was not entitled to sue as a pauper and that she was possessed with means to pay the court-fee. On appeal the learned Judges of the Bombay High Court came to the conclusion that inasmuch as the plaintiff had not actually received the ornaments and cash, she was not possessed of sufficient means to pay the fees, although the ornaments and cash had been deposited in court and had been admitted by the defendant to belong to the plaintiff. We regret we are unable to agree with that decision. The Explanation attached to Order 33, Rule 1, Civil P.C., consists of two distinct parts, the first relating to the case where a fee is prescribed by law for the plaint and the second to a case where no such fee is prescribed. In the former case the plaintiff would be a pauper when he is not "possessed of sufficient means to enable him to pay the fee"; while in the latter case he would be a pauper when he is not entitled to property worth Rs. 100 other than his necessary wearing apparel and the subject matter of the suit.
3. It is therefore obvious that the Legislature has advisedly excluded the subject matter of the suit in the second case, but has refrained from excluding it in the former case. It is therefore not possible to hold that in cases coming in the first category the subject matter of the suit must always and of necessity be excluded from consideration. Whether it should or should not be excluded is a matter for the consideration of the Court which has to decide the question whether the plaintiff is or is not possessed of sufficient means to enable him to pay the fee. The words used are not that the plaintiff should not be possessed of sufficient property to enable him to pay the fee. If such words had occurred, it might well have been argued that it must be established that the plaintiff was in actual physical possession of some property which would yield the necessary amount. But the words used are "possessed of sufficient means to enable him to pay the fee", which in our opinion merely mean that he is able to pay the fee. To lay down that even where the plaintiff can easily obtain possession of ornaments and cash lying to his credit in Court, he is not possessed of sufficient means because he has not yet taken delivery of such ornaments and cash would, in our opinion, be contrary to the intention of the Legislature.
4. Reliance is also placed on a later case of the Calcutta High Court reported in Provash Chandra v. Municipal Commissioner of Howrah A.I.R. 1930 Cal. 147. So far as the facts of that case go, there can be no doubt that the plaintiff was a pauper in that case. The suit had been brought for damages for wrongful dismissal, and although the defendant had admitted liability to a certain extent, the amount claimed was in the nature of unliquidated damage and was not capable of being transferred in order to give the plaintiff any opportunity for raising money on the security of the subject matter in dispute. The only other property which he seemed to have possessed was a certain amount lying to his credit in the provident fund which also was not transferable. It is therefore obvious that the plaintiff was a pauper, as he could not have raised money on the security of these properties and had no other means to enable him to pay the fee. But the learned Judges seem to have relied strongly on the Bombay case referred to above with which we are unable to agree and seem to have laid down that in regard to cases coming under the first part of the explanation, the subject matter of the case cannot be taken into consideration and any amount which is not actually in the petitioner's possession cannot be taken into account in making the calculation.
5. In expressing this view they did not follow the ruling of a learned Single Judge of the Madras High Court in In re Pokala Mahalakshmi Ammal A.I.R. 1926 Mad. 567. In that case the petitioner had obtained a decree for maintenance and had applied for leave to appeal in the High Court in forma pauperis as regards the amount disallowed. The judgment-debtor had deposited Rs. 571 in Court to the credit of the plaintiff as the amount which had been decreed in her favour. The learned Judge held that the plaintiff was possessed of means to pay the court-fee. We entirely concur in that view. If the learned Judges of the Calcutta High Court meant to lay down that the subject matter of the dispute cannot always be taken into account in considering whether the plaintiff is possessed of sufficient means to enable him to pay the fee or not, then we would have no quarrel with that view; but we are unable to agree with the view that the subject matter in dispute can in no circumstances be taken into consideration even if the case falls under para. 1 of the Explanation.
6. Quite apart from this we also think that there has been no material irregularity in the exercise of jurisdiction committed by the Court below. The Court has duly considered this point and has come to the Conclusion that the plaintiff had means to pay the court-fee. Even if it had committed an error of law, which it has not done in this case, we would not have interfered in revision, as an error of law would not amount to material irregularity in the exercise of jurisdiction. The application is accordingly dismissed with costs.