H. N. TILHARI, J. ( 1 ) THIS revision petition under Section 115 of the CPC arises from the judgment and order dated 27-8-1993 passed by Sri A. M. Bennur, Civil judge, Arsikere, in Miscellaneous Appeal No. 1 of 1993 arising from the judgment and order dated 8-1-1993 passed by the Munsiff, Arsikere, in miscellaneous Petition No. 25 of 1990 dismissing the appeal and affirming the order of the Trial Court, rejecting the applicants' application under Order 43, Rule l (na) of the CPC. ( 2 ) THE facts of the case in nutshell are that the petitioners- applicants filed a suit for recovery of a sum of Rs. 38,113/- with application for being allowed to sue in the form of pauperis as 'they have no money to pay the necessary Court-fee' and sought permission to institute the suit as indigent persons. The plaintiffs-revision petitioners stated that they had no movable or immovable properties of their own from which they could pay the Court-fee amount nor they are in a position to get any loan from the persons of the locality. Petitioners alleged that they are seeking out their livelihood as coolies. The respondents appeared before the Trial court and they denied the allegations made by the petitioners in application under Order 33, Rule 1 and they asserted that the petitioners are in a well off position to pay the necessary Court-fee of Rs. 3,815/- and petitioners have been in possession of both movable and immovable properties and they also alleged that no real cause of action has arisen for filing of the suit. The Trial Court dismissed the application holding that petitioners and petitioners' family have got sufficient immovable properties and in every case they are in possession of a cultivatory land and so they were not indigent persons. On appeal being filed, the lower appellate Court dismissed the appeal and it observed that the evidence clearly discloses that the petitioners' family have got a worth value property and at least they are in possession of agricultural lands in Sy. No. 27/5 and 27/6p. It has found that the family of the petitioner and his brothers is joint in food, worship and estate and there is no such division of the properties. No. 27/5 and 27/6p. It has found that the family of the petitioner and his brothers is joint in food, worship and estate and there is no such division of the properties. On this basis, it held that the petitioners have got substantial property of worth value to pay Court-fee and as such, petitioners cannot be held to be indigent persons under Order 33, Rule 1 and on that basis, the Trial Court rejected the application and the Appellate court dismissed the appeal. Feeling aggrieved by the order of the two courts below, as referred to above, the plaintiffs-applicants have come up before this Court by way of revision under Section 115 of the CPC. ( 3 ) THE learned Counsel for the revision petitioners Smt. Veena O. Mahesh submitted that the Court below acted illegally as well as with material irregularity in holding that the petitioners are not indigent persons simply on the ground that the petitioners and family of petitioner 1 jointly as members of joint family are possessed of agriculture plots and that therefore they cannot be held to be indigent persons. Learned Counsel contended that the question is not of possession of property simpliciter, but the question was whether the applicant has been possessed of sufficient means to enable the applicant to pay the prescribed Court-fee. Learned Counsel contended that to be mere possessing the property is not enough. The Court below has to consider whether on the basis of that property he can fetch money to pay Courtfee, whether petitioner could sell or mortgage that property and could fetch money to pay Court-fee. Learned Counsel contended to this aspect of the matter, the Court below did not apply its mind while it has been essential for the Court to consider it. Learned Counsel contended as observed by the Court below also the property is joint family property, the question is whether the petitioner could transfer any plot by himself, whether selling of source of earning i. e. , agricultural plot will have the effect of depriving the revision petitioner and his brothers of the basic source of income from the land, whether it is the intention of the legislature that in such a case, he has to be forced to sell the property from which he is earning his livelihood and lead the life of a begger on the road. If not, by the mere possession of the property can it be said that the petitioner is having sufficient means to pay the Court-fee and is not an indigent person. Learned Counsel contended that the provisions of law have to be interpreted keeping in view the basic scheme of the constitution and one of the basic principles of Constitution is, learned counsel contended, that no person should be deprived of justice and legal remedies or course of justice merely on account of economic or other disabilities. Learned Counsel contended that the provisions under order 33 have to be looked into in this background. The Court below, as such, has not applied their mind to the question of sufficient means to enable the petitioner to pay the Court-fee. The most important thing that has to be looked into is the question whether the applicant has been possessed of sufficient means to enable him to pay the Court-fee prescribed. The Court has only looked to the question and held that the applicant is possessed with some property without looking to the question whether he could or can transfer that property and as such, learned counsel contended that the Court below on account of misconception of law has arrived at a finding in an illegal manner running contrary to the basic principles of law under Order 33 of the Code and on that basis, arrived at an erroneous finding that the applicant is not an indigent person and it illegally refused to exercise jurisdiction vested by not granting the relief and leave to sue as an indigent persons, * ( 4 ) THESE contentions of the learned Counsel for the revision petitioners have been hotly contested. Learned Counsel for the respondents contended that the Trial Court and the Appellate Court have concurrently found that the applicants and their family have been possessed of the properties namely agricultural lands and also a house which jointly belong to the petitioners and their family. So, petitioners are not indigent persons which is a finding of fact. Learned Counsel further contended that under Section 115, this Court is not entitled to interfere with the finding of fact and this Court should not interfere. ( 5 ) I have applied my mind to the contentions raised by the learned counsel for the parties. So, petitioners are not indigent persons which is a finding of fact. Learned Counsel further contended that under Section 115, this Court is not entitled to interfere with the finding of fact and this Court should not interfere. ( 5 ) I have applied my mind to the contentions raised by the learned counsel for the parties. ( 6 ) THERE can be no dispute as a bare proposition of law that jurisdiction of this Court under Section 115 of the CPC is exercisable and Court can call for the records of a case decided from which no appeal lies to this Court to see and examine whether the Court below has failed to exercise jurisdiction vested in it under law or has illegally usurped the jurisdiction not vested in it or that the Court has acted illegally and with material irregularity in exercise of its jurisdiction vested in it. If on examination of the case records the Court finds that the order of the court below does not suffer from any jurisdictional error as classified under clause (a), (b) or (c) it has got no jurisdiction to interfere with the finding of fact. Even in some cases a case of jurisdictional error is made out, but the order prima facie shows that it is not of such a nature that if it is allowed to stand, it will cause injustice or in other words, if the order is of such a nature that no injustice is going to be done or caused to any party, then as per proviso to Section 115, Court may refuse to exercise its jurisdiction irrespective of the fact that the order is suffering from jurisdictional error. Primary consideration is no doubt of interest of justice and to prevent the abuse of the process of the Court and save a litigant from injustice or irreparable loss. A finding of fact, it may be taken note of, recorded by the Court below if touches the question of jurisdiction and on the basis of erroneous finding of fact, the Court either exercises jurisdiction not vested or refused to exercise the jurisdiction vested and then finding of fact may be said to be one that touches the jurisdiction then that may be said to be a case made out. See the case Joy Chand Lal Babu v Kamalaksha Chaudhury and Others and also the case of Chaube Jagdish Prasad and Another v Ganga Prasad chaturvedi. The expression "court has acted illegally or with material irregularity" in these cases have also been defined to mean as under: "that in exercise of jurisdiction, the Court has not acted illegally means that in breach of some provision of law or with material irregularity by committing an error of procedure. If a finding of fact has been arrived at either by ignoring the basic principles of law or by ignoring the basic criteria prescribed by the law laid down by the Courts under the provisions of law and the finding is arrived after ignoring the basic principles of law in relation thereto, then finding arrived can be said to be arrived at illegally as arrived at not in conformity with the requirement of law". Let us examine Order 33, Rule 1. "1. Suits may be instituted in forma pauperis. Subject to the following provisions, any suit may be instituted by an indigent person. Explanation I. A person is an indigent person. (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subjectmatter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit; or"clause (b) of Explanation I is not material for our purpose. Very important expression used is "if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit". Two tilings must be looked into. A person must be possessed of the means and means must be such that may be capable of enabling the person to pay the prescribed Court-fee. It is not always necessary that the person must be possessed of cash or other item. He may be possessed of the property which could be used without any damage or without any barrier of law and convert that property into money and it should not be such that the person should not be led to the stage of a beggar or a homeless person. Sufficient means without being rendered to beggary and without shelter, if he has sufficient means to enable him to pay court-fee, then he may not be declared as indigent person. Sufficient means without being rendered to beggary and without shelter, if he has sufficient means to enable him to pay court-fee, then he may not be declared as indigent person. But if he has no such position, then mere having property is not sufficient. When I so observe, I find support for my view from certain decisions of this Court as well as of other High Courts. In the case of Radhakrishna Nayak v kunhappa Nayak, this Court observes. "it appears to me that what is really necessary is that the plaintiff in question should either possess property or have such control over property as is sufficient to enable him to command credit and raise sufficient money to pay the Court-fee". In this view of the matter, for determining whether a person is an indigent person or not what has to be examined is not only the possession of the property, but the Court has to examine further question whether the property is sufficient enough to enable him to come on credit and raise sufficient loan. It includes in itself whether he has power to transfer the property either by sale or mortgage and to come on credit and raise funds. This is a question to be examined. In the case of khajabi v Kareembi, Hon'ble Mr. Justice K. S. Nesargi while deciding the revision has been pleased to consider this aspect of the matter. A person is a pauper when he is not possessed of sufficient means to enable him to pay the Court-fee prescribed by law. The words 'not possessed of sufficient means' cannot be considered to be same as not possessed of sufficient properties. Mere possession of properties cannot, in law, be considered as possession of sufficient means to pay the Court-fee. That is the ratio of the decision in Ponnusami v Venkataram Chetty, which has been followed in Radhakrishna Nayak's case, supra. It was further observed by Hon'ble Mr. Justice Nesargi:"it is plain that when the property, which is in the possession and control of the petitioner, is the subject-matter of the suit and her share is still nebulous and even according to the decree of the lower Court it is only 1/8th, no prudent investor would, in the usual course, advance any loan to the petitioner on the basis of such property. Therefore, I am unable to agree with the finding recorded by the Civil Judge that the petitioner is possessed of sufficient means to enable her to pay the requisite Court-fee". An argument was also advanced that the petitioner was lucky to take loan from her brothers. So she can get money to pay Court-fee from her brothers and she is taken to be a person having sufficient means to pay court-fee. This contention was rejected outright by the Court as cannot be accepted. The decision further emphasises that not only possession of property has to be looked into, but the question or point whether he was possessed of the property on the basis of which he could have raised loan in a reasonable manner should also be looked into. In the case of rambhai Punjabhai Vinchiya v Gujarat State Road Transport corporation, Ahmedabad and Another, the Gujarat High Court observes:"besides, the expression 'possessed of sufficient means' has to be construed in its proper context so that it serves the salutary object of enabling the persons who are too poor to enable them to fight their suits without paying the Court-fees. Unless the language of the statute is first interpreted in its proper context, there would be no exercise of discretion and the order passed rejecting the permission would be one in plain violation of the statute and would be an ultra vires order against which such revision application would surely lie. The short question which was posed before the learned Judge was whether the legislature contemplates that while considering the available means to the plaintiff his sole means of livelihood should be included in disposable or realisable assets even though legislature had provided the necessary safeguard of 'sufficient means' in this expression in Order 33, Rule 1. If such an interpretation was to be put on this statutory language, it would mean that a farmer who would have only a plough or the necessary implements of agriculture would have first to sell away those agricultural implements or such a milkman would have first to sell away his cattle or a lorry man would have to sell away his small lorry on which his sole livelihood depends. That would mean that the man would have first to starve himself before he is entitled to approach the Court, to file his litigation. That would mean that the man would have first to starve himself before he is entitled to approach the Court, to file his litigation. That would frustrate the very object of this statutory enactment which enables too poor people to file their suits without payment of court-fees in the first instance. Therefore, the available means or resources and their sufficiency would have to be judged in the light of disposable property on the facts of each case, for effectuating this purpose in question, so that even such a poor litigant is enabled to fight his litigation, without depriving him of his sole means of "livelihood". Their Lordships further observed, "the Legislature never intended that the litigant should first starve before he could file the litigation as pauper". Article 39-A of the Constitution of India mandates that the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Provisions of Order 33 have to be interpreted keeping this mandate in view. This order has been made with this object. So the Court has not only to look that a person is possessed of some property, but it has to be looked from the angle that the property is sufficient enough apart from providing livelihood, it still fetches the amount for payment of Court-fee without affecting his livelihood as an ordinary citizen. It is not that property such as agricultural land which is a source of income and livelihood of a person, that person must be required to sell it and pay the Court-fee even at the cost of his livelihood. The means must be such as to enable him to pay Court-fee must be read in the context of the basic object that poor persons are not rendered remediless because of economic disability or that they are denied of the course of justice because if they sell the property forming part of their livelihood, they will be penniless. Capacity to transfer has to be looked into as I have said earlier, here enquiry has not been done as regards this aspect of the matter. Capacity to transfer has to be looked into as I have said earlier, here enquiry has not been done as regards this aspect of the matter. A case was referred by the learned counsel for the respondents to the decision of A. Prabhakaran Nair v k. P. Neelakantan Pillai. The decision of the Kerala High Court does not appear to support the contentions of the learned Counsel for the respondents. Really the basic principle of law runs counter to the contention of the learned Counsel for the respondents. It will be at this stage very profitable to quote the observations made by the Kerala High Court in paragraphs 2, 3 and 4 of the judgment. "2. Article 14 of the Constitution provides equality before law and equal protection of the laws. Directive Principles of State Policy contained in Article 39-A mandates the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunity and provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. State is deriving revenue from Court-fee stamps and litigant has to pay the prescribed fee when filing the suit. There are many persons who are unable to have access to the legal institutions, due to inability by reason of their poverty to pay the enormous fee which alone could give them an entry. This is why provisions have been enacted in Order 33, of the CPC, exempting such persons from paying in the first instance, the fee prescribed and allowing them to prosecute their suits as indigent persons. That is a matter mainly between the statp and the plaintiff though the opposite party is also having the right to get notice, contest the claim and adduce evidence. Court-fee is a matter essentially between the plaintiff and the State. That is the reason why notice to the Government Pleader is also provided under Rule 6. The object and purpose of the provisions is to see that resort to the temples of justice is not denied to anybody by reason of penury alone. When the indigent person succeeds the revenue to the State is secured by Rule 10 and to meet other contingencies also provisions are made in Rule 11 onwards. The object and purpose of the provisions is to see that resort to the temples of justice is not denied to anybody by reason of penury alone. When the indigent person succeeds the revenue to the State is secured by Rule 10 and to meet other contingencies also provisions are made in Rule 11 onwards. Anyhow, the provisions are not intended to close the doors of Courts to poorer sections on technical grounds even though back door access by avoidance of Court-fee is intended to be prevented. ( 7 ) THE benefit is conferred on persons without 'sufficient means' and not without any means at all. Pauperism is not a prerequisite for the leave. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property alone is what the Court has to look into. Possession of 'sufficient means' refers to possession of sufficient realisable property which will enable the plaintiff to pay the court-fee. Possession of hard cash sufficient enough to pay the court-fee is not a prerequisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay Court-fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. What is intended and provided is that justice shall not be denied to a person for the reason that he is not having sufficient means to pay Court-fee. ( 8 ) EVEN though sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. The interpretation must be to achieve the object behind the provision enabling the benefit to reach those for whom it is intended. What is intended is not capacity to raise funds by means whatsoever by begging, borrowing or stealing or by any other hook or crook, but by normal, and available lawful means. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. This itself is the object of exclusion of property exempt from attachment in execution of a decree and the subject-matter of the suit from 'sufficient means'. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. This itself is the object of exclusion of property exempt from attachment in execution of a decree and the subject-matter of the suit from 'sufficient means'. Assessment of 'sufficient means' should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that has yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of Court-fee cannot be taken into account in calculating sufficient means. The approach must be practical and in a way to promote the cause of justice and at the same time cautious enough to plug mala fide avoidance of immediate payment of Court-fee. The words used are 'possessed of sufficient means' which means that what was not possessed at the time of suit cannot be taken into account". These observations of the Kerala High Court support the view I expressed in earlier part of this judgment and support the contentions of the learned Counsel for the petitioners. In the present case, the Court below has observed that the family of the petitioner and his brothers is joint and there is no partition. It is joint in food, worship and shelter and all the properties jointly belong to all the petitioners. Everyone has got a share and what will the share of each will be considered after partition. Singly the petitioner has no right to transfer any plot and he had to beg for permission of others which is not the intention of law nor that the petitioner should beg loan from his brothers. ( 9 ) THUS considered in my opinion, when the Court below has not considered these aspects of the matter and when it has not applied its mind to these aspects of the matter while deciding that question whether he is an indigent person, the decision of both the Courts below suffers from illegal exercise of jurisdiction in recording the finding. No doubt, no single property apart from the joint family property is being shown to be sufficient enough to be convertible into raising of loan. In this view of the matter, the finding of the Courts below that the petitioner has not been an indigent person is illegal and suffers from jurisdictional error under Section 115 (1) (c) of the CPC and bad in law. I could have preferred to remand the case for decision of this application afresh, but looking to the case to be of 1992 and already eight years have passed in this enquiry only, I think it is proper to hold that in the circumstances of the case, it appears he has no saleable property from which he can earn loan or which he can convert into money as such it cannot be said that merely because he is in possession of the property jointly with his brothers he has got sufficient means to pay Court-fee. When this is the position that he has not been possessed sufficient means to enable him to pay Court-fee, it appears just and proper that revision be allowed and the application under Order 33 be also allowed declaring the applicant to be an indigent person. Revision petition, as such, is allowed. Applicant is declared to be an indigent person. He is allowed to file suit as an indigent person without paying the necessary Court-fee. Let the suit proceed according to law. --- *** --- .