- (1.) S. U. Khan, J. At the time of hearing no one appeared on behalf of respondents hence only the arguments of learned Counsel for the defendant/revisionists were heard.
(2.) THIS is defendants revision directed against order dated 28-3- 1990 passed by Civil Judge, Moradabad in Misc. Case No. 71 of 1989 through which opposite party Nos. 1 and 2 in this revision were permitted to file suit as indigent person. The suit was instituted for recovery of Rs. 25 lacs and odd against applicants and proforma respondent. District Magistrate submitted submitted his report dated 15- 12-1989 to the effect the plaintiffs did not posses sufficient means to pay curt fees and State had no objection in case plaintiffs were permitted to institute suit without payment of Court fees. According to the learned Counsel for the defendant-applicants the most objectionable portion in the impugned order is the observation of the Court below that under Order XXXIII, Rule 1 C. P. C. it is not necessary to see that how much movable or immovable property plaintiffs own and the relevant thing to be decided under the said provision is as to whether plaintiffs have got sufficient means to pay the Court fees at once.
(3.) THE other objection of the applicant is that there was immovable property of deceased mother of plaintiff No. 2 which had been mortgaged with the defendant-bank and thereafter mother of plaintiff No. 2 died hence he became owner of the said property was so much that plaintiff could easily arrange for the amount to pay the Court fees. In that regard the defense of the plaintiff No. 2 was that firstly the property was mortgaged hence not capable of immediate sale and secondly after the death of his mother, his sisters also inherited share in the said property. It has been held in 1979 A. L. J. 1082, Mashooque Ali v. State of U. P. & Ors. , that : "where petitioner is possessed of some property which is not cash, the test to decide whether he is a pauper is not whether in the abstract he has the power of raising money, but whether in the concrete circumstances of the case he can succeed in raising anything substantial by exercising that power. ";