ORDER
1. The petitioner in this Civil Revision Petition seeks to revise the order of the Senior Civil Judge, Tanuku granting leave to R-1/plaintiff to sue as an indigent person. R-1 herein is the plaintiff; the petitioner and R-2 to R-4 are D-1 to D-5 respectively in the suit.
2. The plaintiff filed the suit for recovery of possession of plaint C and D schedule properties and for past mesne profits from D-1. It is her case that she is legally wedded wife of Laxminarayana who got the plaint C and D schedule properties under a Will dated 16.4.1979 executed by Venkatasubbamma who died issueless on 4.2.1984. According to her, Basavaraju who is the husband of Venkatasubbamma is the senior paternal uncle of her husband and that her husband got the plaint C and D schedule properties under a Will dated 16.4.1979 executed by Venkatasubbamma. It is her further case that she has no means to pay the Court fee and therefore she sought for permission of the Court to sue as an indigent person. The petitioner herein who is said to be the adopted son of Basava Raju resisted the petition of the plaintiff seeking permission to sue as an indigent person. It is the case of the petitioner that the plaintiff has sufficient means to pay the Court fee and that she is not the legally wedded wife of Laxminarayana and that the Will dated 16.4.1979 is a rank of forgery. On behalf of the plaintiff, she got herself examined as P.W.1 and on behalf of D-1, he got himself examined as DW.1 and marked registration extract of partition deed dated 31.3.1971 as Ex.B-1. On considering the evidence and on hearing Counsel for both the parties, the learned Senior Civil Judge allowed the application of the plaintiffs and permitted her to sue as an indigent person. Aggrieved by the order of the learned Senior Civil Judge, D-1 has filed this Civil Revision Petition.
3. Learned Counsel for the petitioner contends that the contents of Ex.B-1 certified copy of partition deed amply prove that the plaintiff possesses Ac.10.00 of land and that the lower Court without considering Ex.B-1 certified copy of the partition deed granted permission to the plaintiff to sue as an indigent person. It is nextly contended by him that the plaintiff has not explained anything as to the circumstances in which she lost the possession of the properties which were allotted to the share of her husband in partition with her senior paternal uncle under registered partition deed dated 31.3.1971. There appears to be no dispute that the husband of the plaintiff got ten acres of land in partition with his senior paternal uncle under a registered partition deed dated 31.3.1971. The suit relates to the properties of Basavaraju who is the senior paternal uncle of the plaintiff’s husband. It is the case of the plaintiff that her husband left the house in April, 1988 and his whereabouts are not known since then and therefore, he is presumed to have died.
4. It is contended by R-1/plaintiff that petitioner/D-1 is not entitled to question the order granting permission to R-1/plaintiff to sue as an indigent person since the State which is primarily interested in questioning the legality or correctness of the order of the lower Court has not challenged the impugned order. He placed reliance on the following decisions:
(1) Chinnamani Nadar v. Devagirubai Rajan, (1958) 2 MLJ 93.
(2) P.V.Ramamohan alias Bayappa Reddy and 3 Ors. v. P. Venkatareddy and Ors., 1971 APHC Notes 208.
(3) Laxmamma v. Yadagiri Rao, .
(4) S. Koteswaramma v. S. Subrahmanyam, .
In the first cited decision the Madras High Court held that though the Trial Court did not take into account certain items of property while assessing the capacity of the plaintiff to pay Court fees and granted leave to sue as pauper, the High Court will not interfere in revision filed by the defendant. It is the State that is primarily interested in questioning the legality or correctness of the order of the Trial Judge granting leave to sue informa pauperis, In the second cited decision, our High Court held that what all is required at the stage of enquiry under Order 33 Rule 5 CPC is whether prima facie the plaintiff has a cause of action on the averments made in the petition or whether the suit appears to be barred by any law from the averments made in the petition. In the third cited decision, our High Court held that in pauper proceedings it is the State that is primarily interested in questioning the legality or correctness of the order of the Trial Judge. Where leave has been granted, High Court will not interfere with it in revision preferred by the defendants. In the fourth cited decision, our High Court held that by the express terms of Order 33, Rule 5, Clause (d) the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The Court has not to see whether the claim made by the petitioner is likely to succeed; it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims.
5. Learned Counsel for the petitioner contends that from the nature of the proceedings and from the character of the right involved it must be held that a valuable right and correlative liability is determined as between the parties in the enquiry under Order 33 CPC and therefore the defendant has every right to question the impugned order by filing the revision.
6. It has been held by the Rangoon High Court in Ma Ma Gale v. Ma Mi, AIR 1931 Rangoon 318, that Order either rejecting or granting an application for leave to sue informa pauperis, amounts to case decided and if the order falls within the purview of Clauses (a), (b) or (c) of Section 115 of CPC, revision is competent. A Full Bench of Madras High Court in Palaniappa Chettiar v. M.AR. Krishnamurthy Chetty, , held that there is a very valuable right in issue, as between a plaintiff attempting to sue a defendant informa pauperis and a defendant who urges that the plaintiff ought not to be so permitted to sue. Such a right has necessarily a correlated obligation or liability of the defendant, to be sued by a plaintiff who does not pay the Court fee and this in turn equally involves a right in the defendant to show-cause against the grant of leave. This right is finally determined against him in the proceeding and ‘in that sense, there is a determination of an important right, a correlated liability and corresponding right in the opposite party, as between the parties, even where the order of the Judge is an order granting leave and not declining leave. It is further held that Just it is a valuable right for a pauper plaintiff to be allowed to institute the suit as a pauper, it is an equally valuable right for the defendant in the suit to ask for a direction from the Court to dismiss the application, if he can show that the plaintiff has really the means to pay the Court fee. If an order had been made in the defendant’s favour, it would have put an end to the suit in the form in which it was brought by the plaintiff, and there is even the possibility of the plaintiff abandoning the suit or reducing the claim.
7. Learned Counsel for R-1/plaintiff contends that the petitioner/D-1 is not entitled to question the order granting permission to the plaintiff to sue as indigent person since it is the State that is primarily interested in questioning the legality or correctness of the order of the Trial Judge. He placed reliance on the decision of our High Court in (3) cited in which it has been held that in pauper proceedings it is the State that is primarily interested in questioning the legality or correctness of the order of the Trial Judge. In the cited decision it is nowhere held that the defendant is not entitled to question the legality or correctness of the order of the Trial Judge in permitting the plaintiff to sue as an indigent person. An examination of the provisions of Rules 5, 6 and 7 of Order 33 CPC leave no room for doubt that all these provisions in Rule 5 which are in the nature of disqualification or concern, mainly in the interest of the opposing party, thereby they clearly emphasize that it is as much right of the defendant, indeed, a very valuable right, to establish that the plaintiff has no right to institute the suit as a pauper.
8. Let me pursue the matter from the point of view of the defendant. So far as the defendant is concerned, his right is a valuable right not to be harassed by paupers, with frivolous and vexatious litigations or litigants who have no real interest in the subject matter of the litigation. I may refer to the observations of Subba Rao, C.J. in the Bench decisions in Venkatasubbaiah v. Thirupathaiah, , regarding the object underlying Order 33:
“Order 33 has been enacted to serve a treble purpose: (1) to protect the bona fide claims of a pauper, (2) to safeguard the interests of revenue and (3) to protect the defendant’s right not to be harassed. By enabling the Court to prevent persons with property from suing as paupers or third parties who acquire an interest in the claims of paupers from using the names of paupers and to dismiss petitions which do not “ex facie” disclose a subsisting cause of action, the interests of bona fide paupers are safeguarded and defendants are protected from unnecessary harassment.”
If the intentions of the legislative were that the question of right to institute a suit informa pauperis is of no real concern of the defendant in view that it is merely a question of revenue to the State, the machinery provided by Rules 4 and 5 would have been quite sufficient. The duty cast upon the Court of being prima facie satisfied that the plaintiff is not subjected to any of the prohibitions of Rule 5 would be an adequate safeguard to protect the State in respect of revenue. The second important stage in which the defendant is given a real opportunity to adduce evidence and also address arguments opposing the application with reference to all prohibitions or disqualifications in Rule 5 shows that this proceeding is a judicial proceeding in the very sense of the term and involves an adjudication of right of vital importance to the parties concerned. It is also important to note that Rule 7 provides that the Court shall make a memorandum of substance of evidence adduced by the parties. As observed in (1901) ILR 23 Allahabad 364, Mumtaz v. Rasoolan, an order in an application to sue informa pauperis effecting the institution of a suit. From the point of view of an indigent/ plaintiff an order rejecting his application is undoubtedly a judgment and the proposed suit will not be. on the file of the Court at all, and so far as the Court is concerned there is undoubted termination of the proceedings, the rejection of the application may be for all or any of the disqualifications contained in Rule 5 and it need not be restricted to the question of applicant’s means to pay the Court fees.
9. Just as it is a valuable right for an indigent plaintiff to be allowed to institute the suit as an indigent, it is equally valuable right for the defendant to ask for the Court to dismiss the application if he can show that the plaintiff has really the means to pay the Court fee. Since the valuable right of the defendant is effecting by permitting the plaintiff to sue as an indigent person, the defendant has every right to question the impugned order by filing revision.
10. The plaintiff while being examined as P.W.1 did not dispute of her husband getting the property in partition with his paternal uncle under registered partition deed dated 31.3.1971. The husband of the plaintiff got ten acres of land under the original of Ex.B-1 partition deed. The plaintiff being the legal heir of her husband is deemed to have succeeded to the properties that are allotted to her husband under the original of Ex. B-1 registered sale deed. She did not speak a word as to how she lost the possession of the properties that fell to the share of her husband. In the absence of any explanation, it has to be presumed that the lands fell to the share of her husband are in her possession. In such a case she cannot be declared as an indigent person. The lower Court failed to note the properties that fell to the share of the husband of the plaintiff under the original of Ex.B-1 partition deed and thereby erred in concluding that the plaintiff has no means to pay the Court fees.
11. In the result, this civil revision petition is allowed setting aside the order dated 10-4-2002 passed in O.P. No. 39/1996 on the file of Senior Civil Judge, Tanuku and consequently the petition filed by the plaintiff/ R-1 herein seeking permission to sue as an indigent person stands dismissed and she is granted two months time for payment of the Court fee in the lower Court. If the plaintiff/R-1 herein fails to pay the Court fee within two months from the date of this order, her petition seeking leave to sue as indigent person stands rejected. No costs.