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Chanda Begam v. Maqsood Husain Khan
Factual and Procedural Background
Mst. Chanda Begam applied for leave to sue in forma pauperis. The Civil Judge of Budaun rejected the application on the grounds that her husband had sufficient means to pay the court fee and that she could sell part of her alleged dower claim of Rs. 51,000, of which at least Rs. 17,000 was considered prompt or moajjal dower. [1]
Chanda Begam filed a revision application under section 115 of the Civil Procedure Code. [1]
Legal Issues Presented
- Whether the Civil Judge’s order rejecting leave to sue in forma pauperis was revisable. [2]
- Whether the Civil Judge acted with material irregularity in exercising discretion under Order XXXIII, rule 1. [3]
- Whether a Muhammadan woman’s claim for dower constituted “sufficient means” to pay the court fee under Order XXXIII, rule 1. [3]
Arguments of the Parties
Opposite Party's Arguments
- The order rejecting the application to sue in forma pauperis was not open to revision, relying on Shankar Ban v. Ram Dei. [2]
- The Civil Judge’s reference to the husband’s means was treated as showing his ability to pay the dower, although counsel ultimately did not press that ground. [3]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shankar Ban v. Ram Dei | Relied upon for the objection that the order was not revisable. | The Court noted that the decision had been discussed and dissented from in a later case and did not accept the objection. [2] |
| Sumitra Devi v. Hazari Lal | Recognised the distinction between rejection and allowance of an application to sue in forma pauperis and discussed the relevant case law. | The Court relied on this decision to reject the preliminary objection. [2] |
| Muhammad Ayab v. Muhammad Mahmood | Established a clear distinction between cases where an application to sue in forma pauperis is rejected and cases where it is allowed. | This distinction supported the maintainability of the revision application. [2] |
| Piare Lal v. Bhagwan Das | Approved and followed the principle stated in Sumitra Devi v. Hazari Lal. | The Court treated it as further authority supporting revision. [2] |
| Secretary of State for India v. Sonkali | Also approved and followed the principle stated in Sumitra Devi v. Hazari Lal. | The Court relied on the consistent line of authority to overrule the objection. [2] |
Court's Reasoning and Analysis
The Court held that the preliminary objection to revision could not be sustained because the later authorities had distinguished, dissented from, approved, and followed the relevant principles concerning orders rejecting applications to sue in forma pauperis. The objection was therefore overruled. [2]
The Court then examined whether the Civil Judge had acted with material irregularity. It held that both reasons given for rejecting the application were wholly wrong. [3]
The first reason was not pressed by the opposite party. The Court therefore focused on whether the applicant’s dower claim constituted “means” under Order XXXIII, rule 1. [3]
The Court held that the relevant inquiry was whether the applicant herself was possessed of sufficient means to pay the court fee. A Muhammadan woman’s claim against her husband for dower depended entirely on her option to enforce or surrender it, and she could not be compelled to exercise that option. Accordingly, the dower claim could not be treated as “means” within the meaning of Order XXXIII, rule 1. [3]
Holding and Implications
APPLICATION ALLOWED. The Court set aside the Civil Judge’s order and granted Chanda Begam leave to sue in forma pauperis. The opposite party was ordered to pay the costs of both courts. [4]
The direct effect was that the applicant could pursue her suit without being required to provide the court fee on the basis of her dower claim. The opinion does not discuss broader implications or state a new precedent beyond applying the governing principles to the applicant’s case. [3][4]
Ismail and Mulla, JJ.:— This is an application in revision under section 115 of the Civil Procedure Code by one Mst. Chanda Begam whose application for leave to sue in forma pauperis has been rejected by the learned Civil Judge of Budaun. The learned Civil Judge has given two reasons for rejecting the application: firstly, that the applicant's husband possesses sufficient means to pay the court fee which is payable by the applicant herself; secondly, that the applicant admittedly has a claim of dower against her husband to the extent of Rs. 51,000 and the dower being unspecified at least one-third of it, that is, a sum of Rs. 17,000 is moajjal or prompt and it is open to the applicant to sell a portion of that part of her dower in order to provide the necessary court fee for her suit.
A preliminary objection was taken by learned counsel for the opposite party that the order passed by the learned Civil Judge was not open to revision at all. Reliance was placed in support of this contention on the case of Shankar Ban v. Ram Dei(1). That case has, however, been discussed and dissented from in a later decision of this Court in the case of Sumitra Devi v. Hazari Lal(2). It was held by a Bench of this Court in the case of Muhammad Ayab v. Muhammad Mahmood(3) that there was a clear distinction between a case in which an application to sue in forma pauperis is rejected and one in which it is allowed. That distinction was approved in the case of Sumitra Deiti v. Hazari Lal in which the whole case law was fully discussed by Sulaiman, C.J It appears that the decision in Sumitra Devi v. Hazari Lal has subsequently been approved and followed in two other cases of this Court, one being Piare Lal v. Bhagwan Das(4) and the other being Secretary of State for India v. Sonkali(5). In view of these cases learned counsel for the opposite party had to concede that he could not press this preliminary objection. We accordingly overrule the objection.
The only point which remains for consideration is whether the learned Civil Judge has or has not acted with material irregularity in the exercise of his discretion. We need only say that both the reasons given by the learned Civil Judge are wholly wrong and it must, therefore, be field that he has acted irregularly in the exercise of his discretion. So far as the first point is concerned learned counsel for the opposite party had to concede that he was not prepared to press it. In fact he said that the point had been referred to by the learned Civil Judge only with a view to showing that the husband of the applicant was in a position to pay the dower. As regards the other point, it is enough to state that what has to be decided in an application for leave to sue in forma pauperis is whether the person making the application is or is not a pauper within the meaning of order XXXIII, rule 1, that is, a person possessed of sufficient means to pay the court fee. The simple question is whether a claim which a Muhammadan lady might have against her husband to realise her dower is “means” within the meaning of order XXXIII, rule 1. We have not the slightest hesitation in holding that the answer must be in the negative. It depends entirely upon the option of the lady to prefer a claim for her power or to surrender it. She cannot by any means be forced to exercise that option. It is evident, therefore, that her claim for dower cannot be deemed to be “means” within the meaning of order XXXIII, rule 1.
The result, therefore, is that we allow this application and setting aside the order passed by the learned Civil Judge we grant the application for leave to sue in forma pauperis. The opposite party will pay the costs of both the courts.
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