Bachaspatimayum Thambou Sharma v. Kshetirimayum Gokulchand Singh
1967-03-31
C.JAGANNADHACHARYULU
body1967
DigiLaw.ai
ORDER : This is a revision petition filed by the petitioner under Section 115 C.P.C. to set aside the order of the Second Sub-Judge, Manipur, dated 30-4-1966 in his Judicial Miscellaneous Case 4 of 1966 rejecting the petition filed by the petitioner under Order 33 Rules 1,2 and 3 C.P.C, for leave to sue in forma pauperis. 2. The petitioner filed a suit in forma pauperis in the lower Court against the respondent claiming damages to the extent of Rs. 6,906/- from him. He has to pay court fee of Rs. 570.75. The petitioner let in evidence by examining himself as P.W. 1 and another witness Mutum Kala Singh as P.W. 2 to show that he is a pauper. The lower Court held that the petitioner owns house property in Khagempalli Panthak worth Rs. 10,000/- that though it was mortgaged in favour of the Government to secure loan of Rs. 3,000/-, the petitioner has equity of redemption from which the court fee could be easily raised and that thus the petitioner has sufficient means and properties to pay the court fee. The second Sub-Judge accordingly rejected the petition under Order 33 rule 5 C.P.C. Hence the present revision petition by the petitioner under Section 115 C.P.C. to set aside the order of the lower Court. 3. The first question for determination is whether the petitioner is a pauper. His evidence as P.W. 1 shows that he owns house property in Khagempalli Panthak, that he mortgaged it in favour of the Government for Rs. 3,000/- for constructing a house, that he dismantled his own house and that he rebuilt it. According to him, he got still Rs. 600/-and Rs. 1,500/- for the completion of the construction of the house, on which he has still to put up the roofing. He estimated the value of the house at about Rs. 10,000/-. 4.
3,000/- for constructing a house, that he dismantled his own house and that he rebuilt it. According to him, he got still Rs. 600/-and Rs. 1,500/- for the completion of the construction of the house, on which he has still to put up the roofing. He estimated the value of the house at about Rs. 10,000/-. 4. The explanation to Order 33 rule 1 C.P.C. defines "pauper" as follows : "Explanation-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." Thus, the petitioner has equity of redemption in the house property worth Rupees 10,000/- which is subject to mortgage to Government only for Rs. 3,000/-. So, he can easily raise the sum of Rs. 570.75, either by executing a second mortgage or by selling away the property. The contention of the petitioners counsel is that the petitioner cannot be said to be "possessed" of sufficient means, even though he has got equity of redemption. He relied on Mt. Hira Kuer v. Palku Singh AIR 1918 Pat. 322. It was held that the word "redeem" means "to buy back" or "to set free by payment" and that as the property is bound by a mortgage, any action taken to discharge the bond by payment of money is "redemption". In Jodhiram Sah v. Harihar Missir, AIR 1958 Pat 464 it was held that, subject to any contract to the contrary, a mortgagor is not in law entitled to redeem a usufructuary mortgage before the expiry of the due date of payment. In Durga Prosad Chamaria v. Mario Galstaun, AIR 1955 Cal 194 it was held that the mortgage money becomes payable only when both the right of the mortgagee to sue and of the mortgagor to redeem would coalesce. None of these decisions is any authority for the position that the equity of redemption cannot be construed as sufficient means within the meaning of the explanation to Rule 1 of Order 33 C.P.C. The equity of redemption is property end it can be disposed of either by mortgage or by sale. Also, vide Kapildeo Singh v. Ramrikha Singh, (1910) 8 Ind. Cas.
Also, vide Kapildeo Singh v. Ramrikha Singh, (1910) 8 Ind. Cas. 484 (All) and Pappammal v. Seethammal, AIR 1940 Mad 754. The fact that the petitioner is unable to find any buyer for his equity of redemption is no ground for holding him as a pauper within the meaning of Order 33 Rule 1 C.P.C. vide Prem Kumar v. Girdhari Lal, AIR 1940 Oudh 208. As the house property is worth Rs. 10,000/- and as it was mortgaged in favour of the Government for Rs. 3,000/- only, the petitioner can easily raise the court fee amount of Rs. 570.75 by either a second mortgage or a sale of his equity of redemption. So, the petitioner is not a pauper. 5. The next point for determination is whether the present Civil Revision petition lies. It was argued by the respondents counsel that the revision petition under section 115 C.P.C. does not lie, as the lower Court did not act illegally or with material irregularity in the exercise of its jurisdiction under Section 115(c) C.P.C. As the Second Sub-Judge passed the order in question on the evidence, it cannot be said that he acted illegally or with material irregularity in the exercise of his jurisdiction in passing the order. So, no revision lies, vide also Ramchandra v. Gajrabai, AIR 1925 Nag 343 and Ram Kirtarath v. Raghunatha Missir, AIR 1954 Pat 193 . The contention of the petitioners Counsel is that revision lies and he relied on Asha Devi v. Devi Dayal, AIR 1961 Pat 116 it was held that the test of pauperism is not whether the petitioner has the power of raising money in the abstract, but whether in the concrete circumstances of the case he can succeed in raising anything substantial by exercising it and that, therefore, if the Court holds that the applicant has got property but does not give a finding on the value, then the Court does not properly exercise jurisdiction in holding that the applicant should not be permitted to sue in forma pauperis. In the present case the lower Court gave a finding on the value of the property as Rs. 10,000/- and held that as it is subject to mortgage in favour of the Government only for Rupees 3,000/-, the value of the equity of redemption is more than sufficient to meet the court fee.
In the present case the lower Court gave a finding on the value of the property as Rs. 10,000/- and held that as it is subject to mortgage in favour of the Government only for Rupees 3,000/-, the value of the equity of redemption is more than sufficient to meet the court fee. So, this decision has no application to the facts of the present case. Thus, there are no grounds for interference by this Court under Section 115 C.P.C. 6. The result is, therefore, that this petition must be dismissed. It is accordingly dismissed with costs. Petition dismissed.