' This revision petition arises out of a suit for damages (in forma pauperis) filed by the petitioner on 30th March, 1977 under the Fatal Accidents Act of 1855, in the Court of the Civil Judge, Faisalabad.
The petitioner's application for permission to sue in forma pauperis was dismissed by the trial Court vide order dated 22nd March, 1978. Hence this revision petition.
2. The learned counsel for the petitioner urged that the trial Court acted with material irregularity in holding that the petitioner was not a pauper. He submitted that the petitioner did not own any property and the property, if any, owned by her husband, could not be taken into consideration to non-suit the petitioner. The learned Assistant Advocate-General, who appeared on behalf of respondent No,1 frankly conceded that according to his instructions, the petitioner did not own any property and was a pauper within the meaning of law. However, the learned counsel for respondents Nos.2 and 3 opposed the petition on the ground that the property of the husband, who was one of the beneficiaries in respect of the claim made in the suit, could be taken into account for holding the petitioner to be solvent for the purpose of payment of court-fee.
3. In a suit filed in forma pauperis the means and resources of the plaintiff alone have to be considered to judge sufficiency of his or her means to pay the court-fee, prescribed under the law.
The explanation under Order 33, rule 1 of the C.P.C. Defines a pauper as under:-- "A person is a "pauper" when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth (one thousand) rupees other than his necessary wearing-apparel and the subject-matter of the suit."
'Under rule 5 of Order 33, the application for permission to sue as a pauper can be rejected, inter aka, on the ground that the "applicant" is not a pauper. A bare reading of the provisions of Order 33, rules 1 and 5 makes it abundantly clear that the Court has to take into account the financial position and resources of the plaintiff alone for determining sufficiency of his means to pay the requisite court-fee. The property or assets belonging to the husband or other relatives cannot be taken into account for the said purpose. While dealing with a similar question in the case of Sharfunnessa v. Nazni Khanum (AIR 1918 Patna 329) (D.B.) it was held as under:-- "There has been no finding and indeed no inquiry as to what the means of the applicant herself are. We are of opinion that the fact that the husband has property is not sufficient proof that the lady herself has property from which court-fees in the case can be paid."
V'In the present case the Court wrongly framed issue No,1-A, pertaining to the property of the husband and on finding that he owned property worth more than Rs,1,000, decided issue No,1 against the petitioner as well. Thus, the Court clearly acted with material irregularity in passing the impugned order.
4 The argument that the petitioner's husband would also be a beneficiary from the decree, if ultimately passed, merits no consideration qua the petitioner's application for permission to sue as forma pauperis. The evidence produced by the parties shows that the petitioner is not possessed of sufficient means to pay the court-fee on the value of the suit, i.e, Rs,24,000. Hence she is a pauper within the meaning of law. I, therefore, allow this revision petition, set aside the impugned order dated 22nd March, 1978 passed by the Civil Judge, Faisalabad. The petitioner's application for permission to sue as forma pauperis is allowed and the case is remanded to the trial Court for decision of the suit on merits in accordance with the law. As the suit is pending since the year 1977, the trial Court shall expeditiously decide the same before the end of the current year. The parties are left to bear, their own costs.