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2002 DIGILAW 624 (MP)

Gayatri Saroj v. Shashi Prabha Sarasvat

2002-07-04

S.SAMVATSAR

body2002
JUDGMENT 1. This appeal is filed by the plaintiff under Order XLIII Rule 1 CPC against an order dated 21.1.1999 whereby the Third Additional District Judge, Gwalior has rejected the MJC No. 24/96 filed by the present appellant. 2. The present appellant has filed a suit which was valued at Rs. 1,40,000/- without paying court-fees. The appellant claimed exemption from payment of court-fees on the ground that she is not in a position to pay ad valoram court-fees and sought permission to sue the suit as forma pauperis. As per the allegations of the appellant, her husband is suffering from cancer and is getting treatment in Government Hospital. She has no separate source of income of her own. Her husband is getting pension which is about Rs. 388/per month. This amount is very meagre for her survival and for the treatment of her husband. She has no other source of income and, therefore, she is not in a position to pay the court-fees. 3. Bank of India has issued a certificate dated 11.11.1995 which shows that the pension of the husband of the plaintiff is Rs. 348/- per month. A copy of the said certificate is on record. Naib Tahsildar, Gwalior has also issued a certificate dated 26.12.1997 wherein he has certified that the annual income of the appellant's husband is Rs. 5,000/- per year. The lower Court on the basis of the said certificate issued by the Naib Tahsildar, Gwalior has come to the conclusion that since the appellant's husband having an income of Rs. 5,000/- per year, appellant cannot be said to be pauper. 4. This approach of the Court below is totally erroneous firstly because the income of the husband cannot be taken to be the income of the plaintiff-wife. Moreover, Rs. 5,000/- per year is very meagre amount for fulfilling minimum requirement of survival of two old persons, i.e. husband and wife. From that income it cannot be expected that a person can save an amount to pay the ad valorem court-fees on the sum of Rs. 1,40,000/- which is Rs. 10,640/-. Thus, the impugned order on the face of it is illegal and contrary to the facts and circumstances of the case and is, therefore, liable to be set aside. 5. Thus, the impugned order dated 21.1.1999 passed in MJC 24/96 by Third Additional District Judge, Gwalior is set aside. 1,40,000/- which is Rs. 10,640/-. Thus, the impugned order on the face of it is illegal and contrary to the facts and circumstances of the case and is, therefore, liable to be set aside. 5. Thus, the impugned order dated 21.1.1999 passed in MJC 24/96 by Third Additional District Judge, Gwalior is set aside. The appellant-plaintiff is permitted to sue the suit as forma pauperis. Looking to the old age of the plaintiff it is expected that the Court below shall proceed with the case as expeditiously as possible. 6. With the aforesaid directions, this appeal is allowed with no orders as to costs.