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AMICUS AI
Citation Codes
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Case Number
Attorney(S)
  • Mr. Surajit Chandra Lahiri for the Petitioner.
  • Messrs Manmatha Nath Roy and Surja Kumar Aich for the Opposite Party.
Judges
  • Mukerji
  • Jack, JJ.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. Surajit Chandra Lahiri for the Petitioner.
  • Messrs Manmatha Nath Roy and Surja Kumar Aich for the Opposite Party.
Judges
  • Mukerji
  • Jack, JJ.
See more information ...
Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

Provash Chandra Lahiri, a Sanitary Inspector employed by the Howrah Municipality, applied for leave to sue in forma pauperis against the Chairman and the Commissioners of the Howrah Municipality, claiming wrongful dismissal and asserting damages of approximately Rs. 32,000. Part of his claim included sums allegedly due from his Provident Fund (variously recorded in the opinion as Rs. 1,290; Rs. 633-8; and Rs. 1,307-10-8 p.). The court-fees for the contemplated plaint were Rs. 1,590.

The Subordinate Judge of Howrah, on 24 May 1929, refused the petition for pauperism, concluding that the Provident Fund sum (which the Municipality said was available to the petitioner) together with other property of the petitioner (valued at about Rs. 400) were sufficient to enable payment of the court-fees; therefore, the petitioner was not a pauper. The Collector had conducted an inquiry and did not oppose the petitioner's application to sue in forma pauperis. The petitioner obtained a rule in the higher court to show cause why the Subordinate Judge's order should not be set aside.

Legal Issues Presented

  1. Whether the petitioner is a "pauper" within the meaning of the Explanation to Order XXXIII, Rule 1, Code of Civil Procedure, in circumstances where the defendant has stated an amount (Provident Fund dues) is available to the petitioner and where the petitioner possesses some other property of modest value.
  2. Whether an amount that is the subject-matter of the suit, but not actually in the petitioner's possession (including an amount offered or deposited by the defendant), may be taken into account in determining pauperism for the first part of the Explanation to Order XXXIII, Rule 1 (i.e., "is not possessed of sufficient means to enable him to pay the fees").

Arguments of the Parties

Opposite Party's Arguments

  • The Opposite Party (Howrah Municipality) contended that the provident-fund money which related to the plaintiff's claim was available to the petitioner and therefore should be considered in assessing whether he was able to pay court-fees.
  • The Opposite Party relied on the Madras High Court decision in Pokala Mahalakshmi Ammal to support the position that amounts which form part of the subject-matter of the suit and are made available to the plaintiff (in that case by deposit) can be taken into account when deciding pauperism; the Opposite Party argued that the phrase "subject-matter of the suit" at the end of the Explanation should not be read into the first part of the Explanation which uses the language "is not possessed of."

Petitioner's Position (as presented in the opinion)

  • The petitioner sought leave to sue in forma pauperis on the basis that he did not possess sufficient means to pay the prescribed court-fee (Rs. 1,590) at the time of his application.
  • The Collector's inquiry did not oppose the petitioner's application (indicating official fact-finding supportive of the petitioner's pauper claim).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Pokala Mahalakshmi Ammal (Madras High Court) Supported the proposition that where money forming part of the subject-matter of the suit is deposited or otherwise made available to the plaintiff, that amount can be taken into account in determining whether the plaintiff can pay court-fees. The court noted that Pokala Mahalakshmi Ammal supported the Opposite Party's contention but distinguished that in Pokala the money was actually deposited in court; nonetheless, the present court did not place decisive weight on that difference for the purpose of the legal analysis.
Dwarka Nath Narayan v. Madhavrav Vishvanath (Bombay High Court) Where property is found at enquiry to be undisputed and is freely at the petitioner's disposal (for example, when part of the subject-matter is deposited in court), its value may be counted and is not to be regarded as part of the subject-matter excluded by the Explanation. The opinion records this principle as relied upon by Jackson, J., in Pokala; the present court considered the case but emphasized the distinction between possession/power of control (relevant to the first part of the Explanation) and mere entitlement.
Bai Balagauri v. Motilal Ghelabhai Explains considerations indicating that subject-matter of the suit should not be taken into account when assessing pauperism under the Explanation; supports the view that amounts not in actual possession of the petitioner are to be excluded. The court relied on the reasoning in this case to support its conclusion that for the first part of the Explanation ("is not possessed of") amounts which do not form part of the petitioner's actual possession or control (even if they constitute subject-matter) cannot be counted in assessing pauperism.

Court's Reasoning and Analysis

(Step-by-step synthesis of the court's legal analysis as stated in the opinion.)

  1. The court began with a textual analysis of the Explanation to Order XXXIII, Rule 1, C.P.C., noting the distinct wording of its two parts:
    • The first part uses the phrase "is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit" — focusing on actual possession or power of control over funds to pay court-fees.
    • The second part uses "is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject-matter of the suit" — focusing on entitlement rather than possession and expressly excluding the subject-matter of the suit when judging entitlement.
  2. The court drew the legal distinction between "possession" and "entitlement": for the first part (which governed the petitioner's case), what mattered was whether the petitioner actually possessed or had control over the funds necessary to pay the court-fees at the time of the application. The phrase "subject-matter of the suit" appears only in the second part and therefore does not automatically alter the meaning of the first part.
  3. Applying that distinction, the court held that any amount which forms part of the subject-matter of the suit but is not in the actual possession or control of the petitioner at the date of the application cannot be counted for the purpose of determining whether he is a pauper under the first part of the Explanation.
  4. The court considered the precedents cited (including Pokala Mahalakshmi Ammal and Dwarka Nath Narayan) and acknowledged that some authorities have held that sums deposited or definitely available to the petitioner may be taken into account. However, the court emphasized that possession or the practical power to use the funds for payment of fees is the critical test under the first part of the Explanation.
  5. The court also reiterated the temporal aspect: pauperism must be assessed as of the date of the application; if the applicant qualifies as a pauper at that date, the protection continues for the duration of the suit unless sufficient materials later justify cancelling the permission.
  6. On the facts, because the Provident Fund sum was not actually in the petitioner's possession at the time (it was offered by the Municipality but not in the petitioner's control), and the Subordinate Judge had erred in treating that sum as effectively available to the petitioner for payment of court fees, the court concluded that the Subordinate Judge's refusal could not be supported.
  7. Practical protective relief was ordered: although the petitioner was entitled to sue in forma pauperis, the court considered it desirable to preserve the Provident Fund amount that the Opposite Party had offered to pay. Accordingly, injunctions were to be issued restraining both parties from withdrawing or parting with that amount until appropriate orders regarding court-fees are made after the termination of the suit.

Holding and Implications

Holding: The Rule was made absolute. The court held that the Subordinate Judge's order refusing leave to sue in forma pauperis was erroneous and that the petitioner, on the facts presented, was entitled to institute the suit in forma pauperis.

Immediate consequences for the parties:

  • The Subordinate Judge is directed to grant the petitioner's application for leave to sue in forma pauperis.
  • The court ordered injunctions restraining both the petitioner and the Opposite Party from withdrawing or parting with the Provident Fund amount which the Opposite Party had offered (recorded in the opinion as Rs. 1,307-10-8 p. and later referenced as Rs. 1,307-10 as 6 p.) until proper orders are passed with regard to court-fees after the termination of the suit.
  • The Rule was made absolute with no order as to costs.

Broader implications: The opinion confines itself to the statutory and textual interpretation of the Explanation to Order XXXIII, Rule 1, and applies established authorities. The court did not purport to lay down a new, broad precedent beyond its application of the possession-versus-entitlement distinction and the temporal test (assessment as of the date of the application). The direct legal effect is to confirm that, under the first part of the Explanation, amounts not actually in the petitioner's possession or under his control at the time of application cannot be counted against pauper status; no wider pronouncement about entitlement-based cases (the second part) was made.

Note: This summary is based exclusively on the text of the provided opinion and does not add information beyond what the opinion itself states.

Show full summary ...

    Provash Chandra Lahiri v. The Chairman Of The Municipal Commissioners Of Howrah Opposite Party.

    The Judgment of the Court was as follows:—

    This Rule was issued to show cause why a certain order passed by the Subordinate Judge of Howrah on the 24th of May 1929, should not be set aside or such other or further order made as to this Court may seem fit and proper. The order complained of was passed on an application which the Petitioner Provash Chandra Lahiri had made for leave to sue in forma pauperis. The order was one by which the learned Judge refused the leave asked for.

    The circumstances that are necessary to be set out for the purposes of this Rule are the following:— The Petitioner was a Sanitary Inspector, under the Howrah Municipality. He made an application for the purpose of obtaining permission to sue in forma pauperis the Chairman and the Commissioners of the Howrah Municipality, claiming damages for wrongful dismissal from services. He claimed damages to the extent of Rs. 32,000 odd. The said amount is made up of several items amongst which there is one of Rs. 1,290 as being due to him on account of balance of money at his credit in the Provident Fund. On receipt of the aforesaid application notice was given by the Subordinate Judge to the Opposite Party. The Opposite Party on 2nd February 1929, submitted a statement in which it was stated that as regards the sum of Rs. 633-8 which was subscribed by the said Provash Chandra Lahiri to the Provident Fund it was available to him and that he could get it at any time he chose. On the 4th of May 1929 the Opposite Party filed an additional written statement in which they stated that the Provident Fund money payable to the Plaintiff was found to be Rs. 1,307-10-8 p. and that the said sum was available to the Plaintiff at any time that he would ask for it. The amount of court-fees payable for the plaint in the contemplated suit is Rs. 1,590. The learned Subordinate Judge dealt with the application for pauperism by the order of the 24th May 1929, in which he held that the Municipality had not disputed their liability for the amount which was payable to the Plaintiff on account of the Provident Fund and in fact were prepared to deposit it and furthermore that the Municipality was also willing to pay a few rupees in excess. He was, therefore, of opinion that inasmuch as the said amount was available to the Petitioner for payment of court-fees and inasmuch as that amount together with his other properties the value whereof amounted to Rs. 400 and odd were sufficient for the payment of the court-fees the Petitioner was not really a pauper. He accordingly refused the Petitioner's application for suing in forma pauperis. The question for consideration in the Rule which the Petitioner has obtained is whether in the circumstances which have been referred to above it can be said that the Petitioner is a pauper within the meaning of that word as used in Or. 33, C.P.C It may be mentioned here that there was an investigation made by the Collector and that the Collector did not oppose the application of the Petitioner to be permitted to sue in forma pauperis.

    In support of the view that the learned Subordinate Judge has taken reliance has been placed by the learned Advocate, who has appeared on behalf of the Opposite Party, upon the decision of the Madras High Court in the case of Pokala Mahalakshmi Animal and it has been contended by him that the words “subject-matter of the suit” to be found at the end of the explanation to Or. 33, r. 1 of the Code cannot be said to form a part of the first part of that explanation and that, therefore, in a case in which the Defendant places a part of the amount for which the suit is to be laid, at the disposal of the Plaintiff, that amount, though it may form the subject-matter of the suit, may and should be taken into consideration in determining the question whether the Plaintiff is a pauper or not. Now the case of Pokala Mahalakshmi Ammal , it is true, is a decision which supports the contention of the Opposite Party, though there is one point of difference between that case and the present one, and that lies in the fact that there the money was actually deposited in Court and so was available to the Petitioner while in the present case there was only an offer made by the Opposite Party to put in the money so that it might be available to the Petitioner. For the purposes of the present Rule, however, I am not prepared to lay any stress upon this difference. In the case aforesaid the learned Judge, Jackson, J., sitting singly took the view that under circumstances such as those existing in that case, it could be said that the Petitioner was possessed of sufficient means to put in the court-fees. The learned Judge relied upon a decision of the Bombay High Court, in the case of Dwarka Nath Narayan v. Madhavrav Vishvanath which was to the effect that if any property is found at the enquiry to be such as regards which there is really no dispute, such property cannot be regarded as part of the subject-matter of the suit and if a part of the articles for which the suit is to be instituted is deposited in Court so as to be freely at the disposal of the Petitioner, the value of such part cannot be excluded from consideration. Certain other decisions of the Bombay High Court which to him appeared to have taken a different view were also referred to by the learned Judge, but he was not prepared to make a reference to the Full Bench on the ground that Dwarka Nath Narayart's case had not been duly considered therein.

    Now, it is true that there is a certain difficulty by reason of the wording of the Explanation, but it is plain enough that the wording of the first part of the Explanation is very different from the wording of its second part. The first part says: “A person is a pauper when he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit”; and the second part says: “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.” The first point that strikes one is that whereas in the first part the words used are “is not possessed of,” the words used in the second part are “is not entitled to.” In a case in which it is the second part of the Explanation that has to be considered, one has to see whether the Petitioner is or is not entitled to property worth one hundred rupees, and in order to find that out, the necessary wearing apparel and the subject-matter of the suit have to be excluded. In such a case, where it is a question of the Petitioner's means being judged by taking into account what he is entitled to, the subject-matter of the suit had to be excluded expressly by the legislature and, Dwarka Nath Narayan's case and other cases say that property which it is contemplated to include in the suit, if really available to the Petitioner, is not to be excluded from consideration. The first part of the Explanation, however, says that the applicant is to be treated as a pauper if he is not possessed of sufficient means to enable him to pay the court-fee. It is actual possession or power of control over the amount necessary for the payment of court-fees that is the question that has to be considered in connection with this part of the Explanation. It is true that the words “subject-matter of the suit” have no concern with the first part of the Explanation; but this, does not mean that in dealing with the first part of the section the subject-matter of the suit has to be taken into consideration; because the word “possession” which is used in that part sufficiently indicates that any amount which forms the subject-matter of the suit and is not in the actual possession of the Petitioner cannot be taken into account for the purposes of determining his means. Again, in considering the question of pauperism one must look at the matter as it stood at the date when the application was made. If the circumstances of the Petitioner on the date of the said application bring him within the terms of the “Explanation” and are sufficient to have him declared as a pauper, the immunity that the law confers upon him for the purpose of court-fees will be enjoyed by him till the termination of the suit or until such time when sufficient materials would be forthcoming to justify an order cancelling the permission. These and other considerations which have been very well pointed out in the case of Bai Balagauri v. Motilal Ghelabhai sufficiently indicate that even 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. We are of opinion, therefore, that the view which the learned Judge has taken cannot be supported and that the Petitioner upon the facts to which reference has been made is entitled to institute the suit in forma pauperis. In view of the circumstances to which we have already referred, it seems to us desirable that the amount which the Opposite Party has offered to the Petitioner on account of his Provident Fund dues should not be allowed to be withdrawn by the Petitioner or spent in any other way until the disposal of the suit. We accordingly make an order to the effect that while the Subordinate Judge should grant the Petitioner's application lie would at the same time issue injunctions on the Petitioner as well as the Opposite Party restraining them respectively from withdrawing or parting with the amount of Rs. 1,307-10 as 6 p. which the Opposite Party offered to pay to the Petitioner till such time as proper orders are passed with regard to court-fees after the termination of the suit. The Rule is made absolute in the above terms. We make no order as to costs of the Rule.

    P.C

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    Comments

    Provash Chandra Lahiri v. The Chairman Of The Municipal Commissioners Of Howrah Opposite Party.
    (Aug 23, 1929)