P L D 1965 Dacca 358 (PLP)

The applicant was a defendant in a suit in which she was sued for specific performance of two contracts. Plaintiff in the aforesaid suit claimed enforcement of two contracts which have been described in different Schedules. The learned Subordinate Judge dismissed the suit, so far as the First Schedule was concerned. With regard to the contract covered by the other Schedules the prayer for the plaintiff was also refused and no order for specific performance was granted to him. The Court, however, found that the defendant was paid a sum of Rs. 8,000 as consideration for the contract specified in the Second Schedule. In dismissing the suit it was directed that the defendant should pay the plaintiff the said sum of Rs. 8,000 which was found to be the consideration money paid by the plaintiff: In this application the said defendant (applicant) has asked for permission to file an appeal in forma pauperis and along with the application the memorandum of appeal together with the judgment and decree appealed from has been filed. We would like to refer to the provisions of Order XLIV, rule 1 of the Code of Civil Procedure, which are as follows: "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." Under the proviso, as quoted above, it is the Court's duty to examine whether the decree from which the appeal is proposed to be filed "is contrary to law or to some usage having the fore‑, of law, or is otherwise erroneous or unjust." On a perusal of the judgment of the Court below it is clear that the appeal involves a pure question of assessment of evidence. The judgment and decree appealed from were in favour, of the defendant‑applicant, and practically, in toto. She was only asked to pay back the consideration money which the Court below held she had already received. The appeal merely involves a question as to whether her evidence should be preferred to the evidence given on behalf of the plaintiff. We, therefore, think that in accordance with the terms of Order XLIV, rule 1 of the Code of Civil Procedure, this application cannot, and should not, be granted by us. In these circumstances, it is unnecessary for us to examine a further question, that is, whether the applicant is otherwise entitled to file this appeal in forma pauperis on the ground of her inability to pay the court‑fees required. We may, however., add that the test is practically the same as required by Order XXXIII, rule 1 of the Code of Civil Procedure. The test is the inability of the applicant to pay the court‑fees. We may also note that the phraseology of Order XXXIII, rule 1 requires examination. Order XXXIII, rule 1, reads as follows "Subject to the following provisions any suit may be instituted by a pauper. Explanation.‑A person is a `pauper' when he is not possessed of sufficient means to enable him to pay the fees 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 hundred rupees other than his necessary wearing‑apparel and the subject‑matter of the suit." We may, in passing, add that the conjunction "or" in the Explanation to rule 1 of Order XXXIII is unhappy and that, in essence and substance, it really means "and". It is patent, as we have already stated above, that the test whether a person is a pauper or not is dependent on answer to the question: "Has the; applicant sufficient means to pay the necessary court‑fees?" It would be absurd to think that if the amount of the court‑fees is fixed, then insufficiency of the means to pay the same is the test; but, if the amount itself is not fixed, then he cannot be described as a pauper if he is possessed of a property which is worth more than one hundred rupees. Therefore, we think that even in a case where the amount of the court‑fees is not fixed, the test is the same, namely, whether the applicant has sufficient means to pay the court‑fees. It is well‑settled that a Court, in construing the provisions of a law, would interpret "or" to mean "and" in order to give effect to the real intention of the Legislature. In support of this, we may quote the following passage from Maxwell on Interpretation of Statutes, 11th Edition, page 230 which is as follows: "The Bankrupts Act, 1603 (c. 15), which, made it an act of bankruptcy for a trader to leave his dwelling house `to the intent, or, whereby his creditors might be defeated or delayed', if construed literally, would have exposed to bankruptcy every trader who left his home even for an hour, if a creditor called during his absence for payment. This absurd consequence was avoided and the real intention of the Legislature was beyond reasonable doubt effected by reading `or' as `and' so that an absence from home was an act of bankruptcy only when coupled with the design of delaying or defeating creditors. The result, therefore, is, that we reject this application. We, however, allow the applicant four months' time to put in the requisite court‑fees in respect of the memorandum of appeal, if she wishes to prosecute the appeal. ABU MD. ABDULLAH, J.‑

I agree. K. B. A. Application rejected.