GUL ZARIN KIANI, J.- This is an application under Section 115 Civil P.C for revision arising out of an application for permission to continue the trial of the suit initially instituted in the ordinary way without payment of court-fee in forma- pauperis without payment of additional court-fee on it demanded by the trial court.
2. Mst. Irshad Begum plaintiff was owner of an area of 41/2 Kanals with four shops constructed on it in killa No.23 of Sq.No.38 comprised in khewat No.78 at Chak No39-Shumali of Tehsil and District Sargodha. It was alleged that she took a loan of Rs.92400/- from Muhammad Yaqub defendant and to secure its repayment executed a deed in his favour on 29.8.1991. Instead of a simple mortgage deed, defendant was alleged to have manoeuvred a deed of mortgage by conditional sale of the above property in the sum of Rs.202400/-. It was averred that only an amount of Rs.7700/- was outstanding payment out of Rs.92400/- taken by the plaintiff. Rest of the amount was already repaid. In the above context, she sued to have the aforesaid registered deed declared null and void and for redemption of property upon payment of balance money in the sum of Rs.7700/- only. The suit was assessed for purposes of Court-fee and jurisdiction at Rs.22000/- by her and since the assessed valuation fell below the exemption limit, no court-fee was affixed upon the plaint. Defendant applied to the trial court for a direction to the plaintiff for payment of ad- valorem court-fee on the value secured by the registered deed. Plaintiff resisted the application. By an order passed on 26.1.1992, the trial court found the plaintiff liable to pay court-Tee on Rs.202400/- and called upon her to make good the deficiency on 22.2.1993. In brief, the plaintiff was required to pay court-fee in the sum of Rs.15000/- at the maximum. Thereupon, she submitted a miscellaneous application under Order XXXIII, Rule 1 Civil P.C read with Section 151 ibid for an exemption from the payment of court-fee on the plaint on account of her inability to pay it. It was asserted that she was not possessed of 'sufficient means' to pay the aforesaid amount of court- fee. Upon notice of the application, defendant resisted it and denied the averments that the plaintiff was a pauper. Notice was also issued to the District Collector but no report on "means" of the plaintiff was submitted by him. Thereupon, an issue on pauperism was settled in the trial court and parties gave oral evidence on it. Upon its review, the trial court found that the plaintiff was not possessed of sufficient means, to pay the required amount of court-fee on the plaint and permitted her to continue the suit in forma-paupeiis. Aggrieved of the order passed on the application of the plaintiff, defendant initially filed an appeal from it in the court of learned District Judge, Sargodha which upon its entrustment to learned Additional District Judge was returned on 29.5.1994 by him on the ground of being incompetent. Thereupon, a revision petition was presented in this court by the defendant. It was admitted to hearing on 8.6,1994. It raised two points. Firstly, no notice was given to the Government Pleader in terms of Rule 6 of Order XXXIII Civil P.C.And secondly, evidence was wholly insufficient to sustain that the plaintiff was a pauper in terms of Explanation to Rule 1 of Order XXXIII ibid. It was also argued that the application to sue in forma-pauperis was defective, in that, it did not conform to the requirements of Rule 2 of Order XXXIII Civil P.C.
3. Order-sheet of the trial court was not annexed or shown at the hearing by the learned counsel for the petitioner. However, learned counsel for the respondent submitted that upon his own inspection of the original record m the trial court, he had found that notice to Government Pleader was thrice issued by the trial court and it was also received in his office but he failed to respond to submit a necessary report on the sufficiency of means of the plaintiff for payment of court-fee.
Therefore, it was urged that Rule 6 was adequately complied with by the trial court and there was not defect in the proceedings on this score. Learned counsel for the petitioner failed to rebut this contention. Proof for issuance and service of notice in the office of District Collector was produced at the hearing at the instance of respondent. It was taken on file of this court for the purposes of hearing of the instant civil revision. Therefore, the contention that notice was not given to the Government Pleader had no merit in it. Now comes the second contention regarding pauperism of the plaintiff. She gave oral evidence that she had no means to pay the required amount of court- fee on the plaint. She herself appeared in the witness box and was supported by two witnesses. Her husband was stated to be abroad. One of her sons too was also abroad with his father. It was given in evidence that plaintiffs husband was unhappy with her and did not remit money to her and so was the case with her son. She lived on rentals of the two shops in the disputed property.
Defendant tried to rebut her evidence but the trial court was not convinced of its merits and preferred to rely on the plaintiffs evidence adduced on the question of her pauperism.
4. An order declaring a part)' a pauper for purposes of payment of Court- fee is not one of the appealable orders under the Code of Civil Procedure but it was revisable. As there was neither material illegality nor material irregularity in the manner of reaching the impugned decision in terms of Clause (c) of Section 115 Civil P.C, there was little scope for interference with the conclusion of the trial court on merits which other wise rested firmly on sound material. Also, a court has power to allow a properly instituted suit to be continued in forma- pauperis. There is a series of rulings of various High Courts in the Sub-continent for allowing such a course to be adopted by the court. A judgment in Syed Lull Shah etc. V. Azad Jammu & Kashmir Govemment PLD 1966 AJ&K 15 noticed few of them in it. There is almost a consensus of view that the court has power to permit continuance of regularly instituted suit or appeal in forma-pauperis if the plaintiff or the appellant as the case may be was not really possessed of "sufficient means" to pay the requisite amount of court-fet on them. Further, in such a circumstance, the application could not be dismissed bn the ground that it did not conform to the requirements of Rule 2 or 8 of Order XXXIII Civil P.C. This view was supported by clear observations in (Kolluri) Subbarao V. (Kolluri) Venkataratnam and others AIR 1929 Madras 828. No decision to the contrary was brought to my notice by petitioner's counsel.
Revisional jurisdiction was essentially discretionary and it was only in the interest of justice that this court should interfere.
5. Since no argument was raised at the bar, whether subject matter of the suit in deciding the question of pauperism must be or must not be excluded from the purview, I shall not express an opinion on it. The trial court also gave no opinion on it. It may fall for an examination in the trial court in a possible inquiry under Rule 9 of Order XXXIII Civil P.C. However, I do not propose to say anything on it. Furthermore, succeeding Rules 9 to 11 of Order XXXIII of the Code were a sufficient safeguard for the interest of State revenue. In this view, the order in revision was neither in excess of nor without jurisdiction of the court below. It also did not suffer from a breach of procedural law.
In consequence, revision petition is dismissed with no order as to its costs in this court.