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2000 DIGILAW 466 (PNJ)

Balbir Singh v. Dilbagh Singh And Anr.

2000-05-01

R.L.ANAND

body2000
Judgment R.L.Anand, J. 1. The material point for determination in the present revision is whether a stipend in the hand of a person is to be counted for the purpose of income so as to adjudicate as to whether a person is an indigent person or not? 2. Some facts can be noticed in the following manner. Shri Balbir Singh son of Shri Joga Singh, the present petitioner, filed an application in the form of an indigent person seeking the permission of the Civil Court to recover the amount of Rs. 1,51,000/- by way of damages and compensation against Shri Dilbag Singh, Ram Samp and Jagir Singh it was alleged by the petitioner that he owns no moveable or immovable property except the one mentioned in the list attached with the application and he is unable to pay Court-fee as required under the law because he has no source of income. 3. The application was contested by the respondents and the following issues were framed by the trial Court in order to decide the application of the petitioner under order 33 C.P.C:- 1. Whether the applicant is an indigent person? 2. Relief. 4. The parties were afforded the opportunities to lead evidence and during the course of evidence, it was brought on the record that the petitioner has two buffaloes besides that he earns a sum of Rs. 1,200/- per month by way of stipend which he gets in the capacity of a Supervisor from Sakharta Mission (Literacy campaign). The trial Court, in these circumstances, held that the petitioner was not an indigent person and vide order dated 10.4.1995, his petition was dismissed. 5. The petitioner, Shri Balbir Singh, filed an appeal before the Court of Additional District Judge, Hoshiarpur, who dismissed the appeal for the reasons given in para No. 9 of the impugned order dated 29.11.1995. "There is a sufficient evidence on the file vide which it has been proved that the appellant is keeping two buffaloes and is selling milk and thus is earning sufficient amount in addition to the salary which the appellant is earning from the literacy campaign amount of Rs. 1,200/- per month. Learned counsel for the appellant relied upon (1993-2)104 P.L.R. page 93 in case titled Parveen Kumar Anand v. State Bank of India, wherein it has been held by the Honble High Court. 1,200/- per month. Learned counsel for the appellant relied upon (1993-2)104 P.L.R. page 93 in case titled Parveen Kumar Anand v. State Bank of India, wherein it has been held by the Honble High Court. "That deposit under the Provident fund is exempted from attachment cannot be taken into consideration for holding that he is not indigent person." The citation referred above is not applicable to the present case as in the present case in addition to the income from selling the milk appellant is earning Rs. 1,200/- per month regularly which he is getting from the literacy campaign (Sakharta Mission)" 6. Aggrieved by the orders of the Courts below, the present revision has been filed by the petitioner, which I am disposing of with the assistance rendered by Mrs. Baljeet K. Bhullar, the learned counsel appearing on behalf of the petitioner. Nobody has appeared on behalf of the respondents inspite of service. 7. As 1 stated above, the point for determination is as to whether the stipend which a person gets from any institution is to be treated as regular income for the purpose of his assets or not ? 8. Order 33 (1) of the C.P.C. lays down that subject to the following provision, any suit must be instituted by an indigent person. Explanation 1-A.- further lays down that 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 the to pay the fee prescribed by law or 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. Explanation III.- Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity." Section 60(1) of C.P.C, lays down as under:- 60. Explanation III.- Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity." Section 60(1) of C.P.C, lays down as under:- 60. Property liable to attachment and sale in execution of decree: (1) The following property is liable to attachment and sale in execution of a decree, namely lands, houses or other buildings, goods, money bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immove able, belonging to the judgment-debtor, or over which or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf. Provided that the following particulars shall not be liable to such attachment or sale namely,- (a) xx xx xx (b) xx xx xx (c) xx xx xx (cc) milch animals, whether in milk or in calf, kids, animals used for the purposes of transport or draught cart and open spaces or enclosures, belonging to an agriculturist and required for use in case of need for tying cattle, parking carts or stacking fodder or manure; (ccc) xx xx xx (d) xx xx xx (e) xx xx xx (f) xx xx xx (g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer, or payable out of any service family pension fund (notified in the official Gazette) by the Central Government or the State Government in this behalf, and political pension; (h) xx xx xx xx (i) Salary to the extent of the four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance". 9. The legislature in its wisdom made clear distinction between a stipend and salary i.e. the reason that the word salary is in clause (i) of Section 60 (1) while the word stipend appears in clause (g) of Section 60(1) of C.P.C. 10. 9. The legislature in its wisdom made clear distinction between a stipend and salary i.e. the reason that the word salary is in clause (i) of Section 60 (1) while the word stipend appears in clause (g) of Section 60(1) of C.P.C. 10. So, the above would show that a person who gets a stipend which is being achieved by a person is not subject to attachment and as such is not to be counted as income or property of a person in order to adjudicate as to whether he is an indigent person or not. 11. In 1994(1) R.R.R. 626 Ram Singh v. Savitri Devi, it was held by this High Court that for determining whether a person is an indigent person or not amounts received as stipends, gratuity and family pensions and other sums derived from any fund under the provident Fund Ace have to be excluded. 12. In this view of the matter, it has to be held that the stipend-received by the petitioner cannot be treated as his income and cannot be treated his property for the purpose of adjudication as to whether he was an indigent person or not. 13. With regard to the other income of the petitioner, the only evidence is that the petitioner is selling milk or that he has two buffaloes. Even the value of the buffaloes cannot be counted for the purpose of property. Both the Courts have not taken note of the relevant provisions of Section 60 of the Code of Civil Procedure and as such they have committed patent illegality in dismissing the application resulting interference of the High Court in the impugned orders. 14. In the light of above discussion, the present revision is allowed and the impugned order are hereby set-aside and it is hereby declared that the petitioner is an indigent person and he can prosecute his suite for claiming damages against the respondents. 15. The case is hereby remanded back to the trial Court, which is directed to restore the records of the petition to its original number and dispose of the same according to law. The trial Court shall also issue notice to the respondents before proceeding further in the matter. 16. The petitioner through his counsel is directed to appear before the trial Court on 27.5.2000. A copy of this order be sent to the trial Court for information and compliance.