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1985 DIGILAW 120 (DEL)

VRINDA ANAND v. ARUN ANAND

1985-03-11

JAGDISH CHANDRA

body1985
JAGDISH CHANDRA ( 1 ) THE petitioner Mrs. Vrinda Anand has put up this petition under 0. XXXIII R. 1 of the Code of Civil Procedure (in short Code) for permission of the Court to file a suit as an indigent person against the defendants for the return of her stridhan properties detailed in Schedules a and b annexed to the petition or in the alternative for the recovery of a sum of Rs. 2,39,157. 00 being the value of her entire stridhan . She asserts herself to be an indigent person not in a position to pay the requisite court-fees. The petition is resisted by the respondents. ( 2 ) RESPONDENT No. 1 is the husband of the petitioner whereas respondents 2 and 3 are the parents of respondent No. 1. In Schedule "a of the petition there is mention of five "7-Year National Savings Certificates" in the sum of Rs. 1,000. 00 each with a maturity value of Rs. 10,000. 00. These certificates bear numbers 364930 to 364934. At the time of filing of this petition these certificates were the subject-matter of the suit. During the course of evidence on this petition the petitioner came into the witness box as Public Witness1 and during her cross-examination the respondents offered/ tendered to the petitioner these five certificates, but the petitioner refused to receive the same. These certificates are marked a-1 to a-5 . The only question which falls for determination in deciding this petition is whether these five certificates can be taken into consideration or not for deciding the question whether the petitioner is an indigent person or not. O. XXXIII R. 1 of the Code reads as follows : "1. Suits may be instituted by indigent persons Subject to the following provisions, any suit may be instituted by an indigent person. Explanation I. A person is an indigent person, (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit, Explanation II. Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. xx xx xx xx" ( 3 ) THE learned counsel for the petitioner has contended that as these certificates are an item of the subject-matter of the suit the same cannot be taken into consideration as the means possessed by the petitioner for determining whether she is an indigent person, whereas on the other hand the learned counsel for the respondents relying upon Explanation II of R. 1 of O. XXXIII has pointed out that these five certificates are a property acquired by the petitioner after the presentation of the aforesaid petition for permission to sue as an indigent person but before the decision of that petition and has necessarily to be taken into account in considering the question "whether or not the petitioner is an indigent person. These certificates are in the name of the petitioner and had been offered/tendered to her during her cross-examination during the pendency of this petition by the respondents and even though that offer/tender was declined by the petitioner, the same is tantamount to putting these certificates in the possession of the petitioner and the petitioner is deemed to have acquired the same during the pendency of this petition and this has the effect of taking away these certificates from the purview of the subject-matter of the suit, and reading together Explanations I and II of R. 1 of O. XXXIII of the Code the result is that after having been taken out from the subject-matter of the suit these certificates shall be deemed to have been acquired by the petitioner during the pendency of this petition and so shall be taken into account in considering the question whether she is an indigent person or not. ( 4 ) THE learned counsel for the petitioner relied upon certain authorities. ( 4 ) THE learned counsel for the petitioner relied upon certain authorities. In Manjini Mudaliar v. Karunanidhi AIR 1973 Mad 399 , the alleged half share of the plaintiff was residential house and he was not in joint enjoyment thereof along with his father and unless he got his share divided and reduced the same to his possession, there was considerable difficulty in finding out a purchaser for a reasonable price. It was held that the plaintiff s half share forming subjectmatter of the suit could not be taken into account for finding out his means as the share was not in his possession and it was not useful to him to carry on litigation. The learned counsel for the petitioner cannot usefully draw upon this authority for one obvious reason that the said property was the subject-matter of the suit and the plaintiff was not in possession thereof and thus could not utilise that property so as to be said to possess means to pay the necessary court-fees. The matter of possession of the property was of the essence of the matter and in the absence of the same and the property being the subject-matter of the suit, could not be a consideration for determining the sufficiency of the means of the plaintiff to pay the court-fees. Fakir Mohebubshah v. Bai Chandbu AIR 1972 Guj 270 , which held that the inquiry regarding pauperism must be made with reference to the date on which the application to sue as a pauper is presented and events subsequent to that date should not be taken into consideration, is an authority prior to the amendment of 1976 whereby Explanation II was also added to R. 1 of O. XXXIII of the Code according to which any property acquired by a petitioner after the presentation of his application for permission to sue as an indigent person and before the decision of that application, shall be taken into account in considering the question whether or not the petitioner is an indigent person. Similarly, in (Bai) Balagauri v. Motilal Ghelabhai, AIR 1923 Bom 247 (DB) it was held that an application to sue as a pauper could not be rejected merely because the opponent paid in or deposited in Court part of the claim, and the applicant was not obliged to take out of court what was deposited or paid in, and could not, therefore, if he chose to allow the deposit or payment made in Court to remain there, be said to be possessed of means to pay the court-fees as if the deposit or payment were actually in his possession. The reason observed for that finding was that the time when the application was made to institute a suit as a pauper, was the point of time which the Court had to consider when the application came up to bedealt with, and the subject-matter of the suit was in no case at the disposal of the applicant for payment of court-fees. The aforesaid reason embracing the point of time as the presentation of the application to sue as a pauper, stands set at naught by Explanation II to R. 1 of O. XXXIII of the Code by the amendment of 1976. ( 5 ) THE perusal of these certificates shows that they were issued on 23-2-1981 in favour of the petitioner for a period of seven years and their maturity would fall on 23-2-1988, but these certificates can be encashed even after the completion of three years from the date of the issuance thereof as is clearly shown on the back of these certificates. After three years or after four years the amount payable to the petitioner in respect of each of these certificates is Rs. 1,300. 00 and so the total value of these five certificates would now come to Rs. 6,500. 00 It was admitted during the course of arguments by the learned counsel for both the parties that court-fees requisite in this case would be approximately Rs. 5,000. 00. So, the amount of the court-fees i. e. Rs. 5,000. 00 can be paid by the petitioner out of the amount of Rs. 6,500. 00. 6,500. 00 It was admitted during the course of arguments by the learned counsel for both the parties that court-fees requisite in this case would be approximately Rs. 5,000. 00. So, the amount of the court-fees i. e. Rs. 5,000. 00 can be paid by the petitioner out of the amount of Rs. 6,500. 00. ( 6 ) IT was contended by the learned counsel for the petitioner that even if these certificates are taken into consideration to determine the sufficient means of the petitioner possessed by her to enable her to pay the requisite court-fees, it has to be seen that she has to maintain herself as also her child and the aforesaid amount of Rs. 6,500. 00 would be a very small amount even for her maintenance. This contention of the learned counsel is of no avail to him because the payment of court-fees being a statutory requirement is to be a first charge deferring the expenses to be incurred on maintenance. Under R. 10 of O. XXXIII of the Code where the plaintiff succeeds in this suit, the Court shall calculate the amount of requisite court-fees and such amount shall be recoverable by the Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit. So, as a matter of fact, when these certificates have been offered/tendered by the respondents to the petitioner at this stage, the same is tantamount to a partial decree to that extent in favour of the petitioner and the court-fees is payable out of that amount as a first charge thereon. ( 7 ) IN view of the above discussion, the petitioner is possessed of sufficient means to enable her to pay the requisite court-fees and thus cannot be held to be an indigent person and consequently the petitioner cannot be allowed to sue as an indigent person. ( 8 ) THESE five certificates be now delivered to the petitioner per receipt and the petitioner shall now pay the requisite court-fees within one month from today, and the matter be listed on 15th April, 1985.