This Letters Patent appeal is directed against the order of Kailasam, J. dated 17th November, 1966, in C.M.P. No. 12412 of 1966, by which he, at the instance of the respondent, revoked the leave granted by him earlier in C.M.P. No. 14865 of 1965 which entitled the appellant to file the appeal to this court in forma pauperis. The earlier order was apparently made under O. 44, C.P.C.
We shall set out the relevant facts. O.S. No. 11 1960 on the file of the Subordinate Judge's Court, Thanjavur, was filed by the respondent against the appellant, his father and others. That was a mortgage suit which was ultimately decreed on 17th July, 1964, by the Subordinate Judge, Thanjavur. The appellant, who was the second defendant in the suit, filed a petition in this court, C.M.P. 14865 of 1965, for leave to file an appeal in forma pauperis. By an order dated 31st January, 1966, Kailasam, J. directed an enquiry by the lower court into the alleged pauperism of the appellant and called for a report. The lower court held an enquiry. In fact, the respondent placed certain material before the court below to persuade the learned Subordinate Judge to reject the application on the ground that the appellant was guilty of suppression and consequential improper conduct. Inter alia it was suggested that the appellant was possessed of properties, to wit, lands, cocoanut topes, cash in the shape of deposits with the Estates Abolition Tribunal, etc. other than those which are the subject-matter of the appeal, and that as such assets were not disclosed when the petition for leave to institute the appeal in forma pauperis was filed, the petition ought to be rejected in limine. The appellant was fully cross-examined on this aspect in the lower court. The learned Subordinate Judge, after such full fledged enquiry found on the evidence before him that the petitioner was not in possession of such properties or funds. He also observed that, though the assets mentioned belonged to the family of which the appellant was a member, there were no funds available with the Estates Abolition Tribunal and that all the other properties mentioned by the respondent were involved in litigation due to the heavy indebtedness of the father of the appellant. He accordingly found that the appellant was not possessed of the necessary means to pay the requisite court fee. The respondent filed objections to the report and the matter finally came up before Kailasam J. who granted leave as prayed for. It appears, however, that the name of the counsel for the respondent was not shown in the cause list on the date of the hearing. Thereafter the appeal was duly numbered as A.S. 683 of 1966 on the file of this court and certain interim orders were also passed thereon. Then, C.M.P. 12412 of 1966 was filed by the respondent to revoke the leave granted by this court enabling the appellant to file the appeal in forma pauperis. Kailasam J. in his order dated 17th November 1966, cancelled his earlier order. It is significant that the respondent filed C.M.P. 12412 of 1966 under S. 151 C.P.C. and not even under Or. 33, R. 9 C.P.C. and did not ask for review of the earlier order. The respondent's application rested on the only ground that there was suppression of material and that the applicant was not a person entitled to file the appeal in forma pauperis.
The appellant, aggrieved against this order as above, has filed this Letters Patent appeal. Inter alia , the learned counsel for the appellant says that the report of the learned Subordinate Judge on the question of the pauperism of the appellant having been called for, perused and virtually accepted by this court, the earlier order granting leave cannot be revoked. His other objection is that as the impugued order has dispauperised the appellant, it is not sustainable because C.M.P. 12412 of 1966 is not even filed under Or. 33 rule 9 but only under S. 151 C.P.C.
At this stage it is convenient to notice the limbs of Or. 44 which provides for pauper appeals. Or. 44 takes into its fold Or. 33 C.P.C. Or. 44 reads as follows:—
"1.) Any person entitled to prefer an appeal who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable."
"Provided that the court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust."
"2.) The enquiry into the pauperism of the applicant may be made either by the appellate court or under the orders of the appellate court by the court from whose decision the appeal is preferred;"
"Provided that, if the applicant was allowed to sue or appeal as a pauper in the court from whose decree the appeal is preferred, no farther inquiry in respect of his pauperism shall be necessary, unless the appellate court, after hearing the Government Pleader, sees cause to direct such enquiry."
The wards ‘any person entitled to prefer an appeal’ in the opening sentence of Or. 44 rule 1 are somewhat misleading. The entitlement of a person to prefer an appeal, in case it is intended to be filed as a pauper appeal, is subject to the statutory prescriptions laid down later in the said order. Analysing the order as a whole, the following principles may in evolved:
(i) In case an appeal is sought to be filed in forma pauperis, its presentation etc. are governed by Or. 33 C.P.C. (Or. 44 R. 1).
(ii) The appellate court can by itself undertake the enquiry into pauperism or cause an enquiry to be made for that purpose by the court from whose decision the appeal is preferred (Or. 44 R. 2).
(iii) No such above enquiry is necessary, if the person had already secured such leave to file the original suit as pauper; if after hearing the Government Pleader, the court considers that such an enquiry afresh is necessary, it can do so (proviso to Order 44 rule 2).
(iv) After the question of the pauperism of the proposed appellant is decided one way or the other as above, the court after fixing a date for hearing the applicant or his pleader, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust (proviso to Or. 44 rule 1).
From the above statutory procedure prescribed for the institution and admission of appeals in forma pauperis, it is seen that when once an enquiry into the pauperism is directed to be done by the lower court, the report is final, as it is the result of delegation of authority, and all the more it is so when once the appellate court accepts the same and allows the appeal to be numbered. It is so in this case. The intendment of the legislature in prescribing a strict procedure is not to encourage such proceedings, if the applicant is not deserving. It is mainly a matter for the State, and the court has to find whether the judgment is contrary to law and fit for being appealed against.
Thus, when the report of the lower court called for by the appellate court is favourable to the applicant, and when the State through its Government Pleader has not effectively opposed the acceptance of the report and consequentially leave is granted by the appellate court, such a concluded matter, if it is sought to be revoked, only to dispauperise the applicant, it could be done only by means of an application for review and not by a summary application by the contesting party under S. 151 C.P.C. to cancel the original order of the appellate court allowing the applicant to file the appeal as a pauper. It is, of course, undeniable that, when once the court grants leave after accepting the report of the subordinate court and after finding no reason to reject the application, then it cannot lightly interfere with its own order at the instance of the opposing party in the appellate court. In fact, a Bench of this court in Kanni v. Viswanatha Chetti (1968)-2 M.L.J. 352 observed as follows:—
"The fact that the court issues a notice to the respondent can normally only mean that the court is unable to make up its mind, whether the decree sought to be appealed against satisfies the requirements of Or. 44 R. 1(2), and if that is so, that would clearly be a confession that the matter is of sufficient substance to be heard after notice to the respondent, that is, that it merits admission. When that has been done the judge can have no possible occasion for rescinding the order and have second thoughts on the question of the admissibility of the appeal."
The above principle also supports the contention of the learned counsel for the appellant. Therefore, we are of the view that it was not open to this court to cancel its earlier order in C.M.P. 14865 of 1965, in an application by the contesting party under S. 151 C.P.C. Further, in such circumstances, it is imperative as indicated in sub-rule (2) of rule 2 of Or. 44 to effectively hear the Government Pleader as well, which has not been done in this case.
In the alternative, M. Vedantachari relies upon the ratio in Chellammal v. Muthulakshmi A.I.R. 1945 Mad. 296. He contends that in the instant case a deliberate attempt was made to avoid a proper and full disclosure of the assets of the appellant even at the first stage when permission to institute the appeal as a pauper was sought for. According to the learned counsel, the appellant did not reveal that he had an interest in several moveable and immoveable properties of the family. We have already seen that the court below, who has functioning as a delegate of this court, found as a fact, that the appellant was not possessed of the immoveable properties referred to by the respondent and that the moveable properties such as the funds with the Estates Abolition Tribunal and other funds referred to by the respondent, were not available to him. It did not believe that the appellant was possessed of any other independent funds, moveable or immoveable. In these circumstances, it declared the appellant as a pauper. It is now settled that the factors to be considered in a situation like the above are whether the applicant had reason to believe, and actually did believe, that the so-called assets stated to be available with him were not indeed available as utilisable assets. It is in this perspective the bona fides of the individual has to be tested and not on apriori considerations. Vide D. Ramakrishna Chetti v. Govindammal A.I.R. 1954 Mad. 538. Under Or. 33, R. 1, 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 possession referred to is not possession simpliciter or entitlement thereto in the abstract, but it should be capable of being an asset over which he has dominion and he is in praesenti in a position to raise funds thereon to pay the requisite court-fee. See Ponnuswami Maistry v. Venkatarama Chetti (1961) 2 M.L.J. 243. Thus it should be a realisable asset in the hands of the applicant. This marked distinction between ‘entitlement to property’ and ‘possessed of means’ has to be borne in mind, while deciding the question whether a person is a pauper or not. Mere semblance of title, without actual possession and immediate vested right to deal with it and raise funds thereon, would not do. Even if the case of the respondent were to be accepted, it is a case where the appellant might be said to have an interest in proper ties other than the subject matter of the appeal, but it has been found, as a fact, that the appellant has no present right to raise funds thereon because of the involved litigation surrounding it and the heavy indebtedness of his father who is also a member of the joint family. Therefore, we are of the view that the appellant is not possessed of sufficient means to pay court-fee.
The other incidental question is whether the appellant has deliberately suppressed the facts and is, therefore, disentitled to sue as a pauper. The ratio in Chellammal v. Muthulakshmi A.I.R. 1945 Mad. 296 is that utmost good faith is required of the petitioner in the matter of the disclosure of his or her assets and any intentional departure from good faith, whatever may be the motive, must result in the dismissal of the petition. We have referred to this aspect earlier. If a person reasonably and prudently entertains the belief that some assets of the family, which he is not possessed of, are not within his reach and are not, therefore, available, then its non-disclosure cannot be said to be such that his conduct is lacking in utmost good faith, nor can it be conjectured that there was any intentional departure from good faith. It follows, therefore that the conduct of the appellant which is sought to be impugned by the respondent cannot reasonably be said to be vexatious or improper even within the meaning of O. 33 rule 9, and the appellant's application for leave to file the appeal in forma pauperis ought not to be rejected. No doubt, the bona fides of each person depends on the facts and circumstances of each case. The lower court which gave the report accepted the bona fides of the appellant. We are of the view that the general rule laid down in Chellammal v. Muhulakshmi A.I.R. 1945 Mad. 296 has no application to the facts of the instant case. In fact, the person concerned in that case was found to be guilty of international departure from good faith, as he sold certain properties after his application for leave to appeal in forma pauperis was granted. That is not the case here.
On the ground that the order of cancellation was not made in accordance with law, and also for the reason that there has not been a deliberate suppression of assets, we are constrained to differ from Kailasam J. This appeal is, therefore, allowed, but there will be no order as to costs.