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2001 DIGILAW 1414 (PNJ)

Rajiv Garg v. Priti Rani

2001-12-20

BAKHSHISH KAUR

body2001
Judgment 1. This revision petition is directed against the order whereby the application under O. 33, Rr. 1 and 2, C. P. C. of the respondent for suing as an indigent person has been allowed by the trial Court. 2. The marriage of Rajiv with Priti Rani was solemnized on 11-7-1997 according to Hindu rites. Soon thereafter, there arose dispute between the parties. The respondent left the matrimonial home in less than four months period of the marriage and lodged the FIR No. 158 dated 28-6-1998 under Sec. 406/498-A against the petitioner and other family members. The articles of Istridhan including Fixed Deposit Receipts were entrusted by her parents to the respondent and his parents and brother. Some articles were recovered from them and they are in possession of the police. 3. Now, the appellant-respondent does not own any property. She is unable to maintain herself, therefore, she had filed suit for maintenance as an indigent person under O. 33, Rr. 1 and 2 Civil Procedure Code (hereinafter referred to as the Code). The application under O. 33, Rr. 1 and 2 of the Code was allowed. Hence this revision. 4. I have heard Shri C. B. Goel, learned counsel for the petitioner and Shri Amar Vivek, learned counsel for the respondent. 5. Mr. C. B. Goel, learned counsel for the petitioner contended that it is a case where the plaintiff-respondent has got sufficient income and means to pay the requisite court fee and by no stretch of reasoning, it can be said that she is an indigent person. She is earning interest on the amount of Rs. 75,000.00 which is lying deposited in Fixed Deposit Receipts (in short the FDRs) since 9/07/1997. The Fixed Deposit Receipts, though may be lying in the custody of the police, but the respondent has not chosen to take the delivery of the receipts. Thus, she cannot be permitted to take benefit of her own wrong by not approaching the authorities concerned for the delivery of receipts. It is, therefore, clear that she is intentionally not taking possession of the FDRs so as to avoid liability to pay the requisite court fee. It was also contended that it has come in evidence as also admitted by the respondent that the FDRs in the sum of Rs. 75,000.00 is lying deposited with the Punjab and Sindh Bank, Barnala. It is, therefore, clear that she is intentionally not taking possession of the FDRs so as to avoid liability to pay the requisite court fee. It was also contended that it has come in evidence as also admitted by the respondent that the FDRs in the sum of Rs. 75,000.00 is lying deposited with the Punjab and Sindh Bank, Barnala. This fact has not been disclosed by her either in the application or in the Schedule attached to the application, therefore, because of concealment of facts, her claim to declare her as indigent person should have been rejected. Rule 1 of O. 33, C. P. C. reads as under :- "1. Suits may be instituted by indigent person :- 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 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." 6 Thus, by the words "sufficient means" what is contemplated is not possession of sufficient means and capacity to raise money to pay court fee. Mr. Goel, the learned counsel contended that the amount lying deposited in the FDRs has to be taken into consideration. She has source to raise money, therefore, it cannot be said that she has got no sufficient means to pay court fee. The learned counsel placed reliance on Mithai Lal V/s. Jagan, AIR 1937 All 740, Chellammal V/s. Muthulakshmi Ammal, AIR 1945 Mad 296, Rajinder Singh V/s. Karnal Central Co-op. She has source to raise money, therefore, it cannot be said that she has got no sufficient means to pay court fee. The learned counsel placed reliance on Mithai Lal V/s. Jagan, AIR 1937 All 740, Chellammal V/s. Muthulakshmi Ammal, AIR 1945 Mad 296, Rajinder Singh V/s. Karnal Central Co-op. Bank, AIR 1965 Punj 331 and P. V. Chandrasekharan V/s. Thirumalai Chit Funds, AIR 1989 Mad 30. 7. In Chellammals case (supra), the petitioner obtained leave to appeal in forma pauperis by practising fraud by not disclosing all assets. It was held that leave must be cancelled. It was also observed that "utmost good faith is required of the petitioner in the matter of the disclosure of his or her assets, and that any intentional departure from good faith, whatever the motive may be, must result in the dismissal of the petition. 8. In Rajinder Singh and others case (supra), also it was held that the person who seeks indulgence of the Court to sue as a pauper must be absolutely frank with the court in the matter of disclosure of his assets, for it is only where there is a genuine case of a pauper as defined in O. 33, R. 1 of the Code, that the Court can dispense with the court fee which every citizen is expected to pay. The petitioners application in that case, to sue as a pauper was dismissed by the trial Court. It was, therefore, held that where the petitioners have not been fair and frank in this respect and no cogent explanation has been given at the bar as to why the provision of law requiring a full disclosure of the assets has not been complied with, the petition is liable to be disallowed. 9. The case of P. V. Chandrasekharan (supra) was a case where the petition was filed by the appellants to grant leave to them to file appeal as an indigent person and appellants therein were possessed of shares whose value was Rs. 80,000.00 and also owned land to the extent of 2.16 cents, worth more than Rs. one lakh. It was, therefore, observed that the mere fact that the respondents offer to purchase the properties of Rs. 1 lakh and the shares in the company of Rs. 54,000.00 it cannot be said that there is restraint. 80,000.00 and also owned land to the extent of 2.16 cents, worth more than Rs. one lakh. It was, therefore, observed that the mere fact that the respondents offer to purchase the properties of Rs. 1 lakh and the shares in the company of Rs. 54,000.00 it cannot be said that there is restraint. It is open to the petitioners to raise money over the properties and pay the court fee. It is not open to them to contend that only if it is shown that they are possessed of cash, it can be said that they are possessed of means to pay court fee. 10. In Mithai Lals case (supra), the plaintiff applicant was not allowed to sue as indigent person and it was held that where a person who applied to sue as pauper for partition was entitled to a large share in this suit property as a member of a joint Hindu Family and the Court considering that he would be able to pay the court fee by raising money on the security of that share rejected the application, the Court was not in error. 11. To meet this objection, Mr. Amar Vivek, learned counsel for the respondent places reliance on A. Prabhakaran Nair V/s. K. P. Neelakantan Pillai, AIR 1988 Ker 267 wherein it was held that the expression "possession of sufficient means" means capacity to raise money and not actual possession of property. The opposite party is not in any way concerned with the issue of notice to the Government pleader. 12. In the given case in hand, the plaintiff-respondent has been permitted to sue as indigent person. The expression "possessed of sufficient means" to enable her to pay the court fee" would, therefrom mean that she is able to pay the court fee. Whether the plaintiff-respondent in this case, has got sufficient means? The respondent, in her statement before the trial Court stated that she is indigent person. She does not possess cash or gold ornaments nor does she possess moveable or immoveable property. In cross-examination, no doubt, she admitted that there is a Fixed Deposit Receipt for Rs. 75,000.00 in her favour lying deposited with the Punjab and Sindh Bank. She has made it clear by saying that the original receipts are not in her possession, but in the possession of her in-laws. In cross-examination, no doubt, she admitted that there is a Fixed Deposit Receipt for Rs. 75,000.00 in her favour lying deposited with the Punjab and Sindh Bank. She has made it clear by saying that the original receipts are not in her possession, but in the possession of her in-laws. She had approached the bank authorities to sanction loan against the FDRs, but they refused to do so. She has no knowledge if the police had recovered the FDR from them along with other articles or not. 13. In my opinion, in view of the evidence brought on record, the trial Court was not in error in accepting the plea of the respondent that she is not possessed of the means to pay court fee. Even if it is assumed that the trial Court was in error in accepting her plea that the FDRs in question are not in her possession, the High Court cannot interfere with the order passed by the trial Court as the error would not amount to material irregularity in the exercise of jurisdiction as also observed in Mithai Lals case (supra). The impugned order is certainly within the jurisdiction of the trial Court and not tainted with serious legal infirmity justifying interference. In this regard, reference is made to the observations made by the Hon ble Mr. Justice I. D. Dua in Rajinder Singhs case (supra), that the High Court will not interfere unless dictates of substantial justice demand interference, fully apply to this case. 14. The extent of revisional powers of this Court is restricted under S. 115 of the Code. In Pandurang Dhondi Chougule V/s. Maruti Hari Jadhav, AIR 1966 SC 153, it is held by the Supreme Court that the High Court cannot while exercising its jurisdiction under S. 115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. 15. It is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. 15. In view of the aforesaid, no case is made out to interfere with the impugned order. This revision is consequently dismissed. Revision dismissed.