Pokala Mahalakshmi Ammal, In Re

The Petitioner applied for leave to prefer an appeal in this Court from the decree of the District Court of Chingleput in forma pauperis. Her petition was sent to the District Judge for enquiry, whereupon the judgment debtor (she herself has obtained a decree for maintenance and is appealing for a larger amount) paid Rs. 571 (Rupees five hundred and seventy one) into Court to her credit. The District Judge passed an order allowing her to draw out the money, and reported that she had means to pay the stamp duty of Rs. 200 (Rupees two hundred) on her appeal. To this report she objects, Of course Rs. 571 (Repees five hundred and seventy one) is the subject matter of the suit, though not of the appeal but this causes no difficulty because it has been ruled in Krishnabai v. anohar(1) that the subject matter of the suit” in Order. 33 Rule, 1 Civil Procedure Code does not qualify “sufficient means” and the subject matter of the suit is excluded as being presumably out of the paupers reach which is not so in the present case (of) Dwarkanath Narayan v. Madhava Rav Vishvanatha(2). But another Bombay, Bench in Bai Balagauri v. Motilal Chellabhai(3) besides holding that the subject matter of the suit cannot be taken into consideration in calculating the plaintiff's means apparently overlooking Krishnabai v. Manohar has also held that the pauper applicant is not obliged to take out of Court what is deposited or paid in, and cannot, therefore, if he chooses to allow the deposit or payment made in Court to remain there, be said to be possessed of sufficient means as if the deposit were actually in his possession. This differs from a previous ruling of the same court in Dwarkanath Narayan v. Madhavarao Vishvanath and with all respect I think it a most jejune definition of “possessed” to confine the phrase to actual possession on one's own person. I see no distinction between moneys deposited in Court and ordered to be delivered to a person and moneys lying at a person's credit in a Bank. I should hold that a person with Rs. 571 (Rupees five hundred and seventy one) at her disposal in the Court is possessed of sufficient means to enable her to pay a stamp fee of Rs. 200 (Rupees two hundred). Nor do I think it necessary to contemplate that possibly the Rs. 571 (Rupees five hundred and seventy one) might have been attached when the District Judge passed his order. I also think it unnecessary to go into the question whether supposing the petitioner's estate went into liquidation she should have sufficient balance to pay the stamp fee. It is enough to find that at the time of hearing her application she has sufficient means. I have been asked to refer the matter to a Bench because of Bai Balagauri v. Motilal Ghellabhai but the Bombay rulings are so contradictory that I do not consider it to be in the face of clear authority that I am deciding that petitioner is possessed in the circumstances of sufficient means and not entitled to sue as a pauper.

The petition to be allowed to appeal as a pauper is dismissed: the petitioner can pay the requisite fee within one month from this date of this order.

K.S.DPetition dismissed.