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2001 DIGILAW 283 (KAR)

ABHOOBAKAR v. GEORGE JACOB

2001-03-26

D.V.SHYLENDRA KUMAR

body2001
SHYLENDRA KUMAR, J. ( 1 ) THIS is an Appeal preferred by the applicant who had sought to sue as an indigent person and whose application came to be rejected by the Court below by its order dated 31. 7. 1999 in Misc. No. 2/1996. ( 2 ) THE brief facts leading to the above Appeal are that the appellant/petitioner who had filed Misc. No. 2/1996 before the Court of the Civil Judge (Sr. Dn.), Madikeri, seeking for permission under order XXXIII Rules 1 and 2 of CPC to sue as an indigent person as against respondents 1 to 5 and sought to array them as defendants 1 and 5. The case of the appellant/petitioner was that an agreement was executed in his favour by the respondents 1 to 3 who are the defendants 1 to 3 in the suit and who had executed sale agreement to convey immovable property for a consideration of a sum of Rs. 115 lakhs jointly in favour of the appellant/petitioner and respondents 4 and 5 who are defendants 4 and 5 in the suit. ( 3 ) IT is also the case of the appellant/petitioner that there spondents 1 to 3 having executed the sale deed in favour of the respondent No. 4 alone, the appellant being aggrieved has sought for specific performance of the agreement to execute the conveyance deed in favour of the appellant/petitioner and respondents 4 and 5 jointly or in the alternative, to convey 1/3rd of the property in favour of the appellant/petitioner alone. It is for filing such a suit, the appellant/petitioner being not in a position to pay the Court-Fee in view of his financial position, had made an application before the court seeking for permission of the Court to sue as an indigent person. ( 4 ) THE learned Trial Judge who had looked into the matter and be fore whom evidence was let in had formulated two points namely:-1. Whether the petition is filed required under Order XXXIII rules 2 and 3 CPC? 2. What order? ( 5 ) THE learned Trial Judge on examination of the evidence and on hearing the learned Counsel for the petitioner and the respondents, dismissed the petition by an order dated 31. 7. Whether the petition is filed required under Order XXXIII rules 2 and 3 CPC? 2. What order? ( 5 ) THE learned Trial Judge on examination of the evidence and on hearing the learned Counsel for the petitioner and the respondents, dismissed the petition by an order dated 31. 7. 1999 being of the view that the said application was not in accordance with the provisions of Order XXXIII Rules 1 and 2 of CPC and further did not disclose any cause of action and the petitioner had filed to prove that he is a person without sufficient means to pay the necessary Court-Fees. This finding has come to be recorded in view of the fact that the petitioner was a person possessing considerable. extent of properties and was also doing business in timber which was yielding some amount of income etc. ( 6 ) SRI A. R. Holla, learned Counsel appearing for the appellant has submitted that the learned Trial Judge was not correct in dismissing the petition on a technicality of non-compliance of the requirement of Order XXXIII Rules 2 and 3 of CPC and accordingly the order is vitiated and liable to be set aside. In this regard, the learned Counsel has brought to the notice of the Court that these provisions are amended by the Karnataka Amendment to Order xxxiii Rule 5. ( 7 ) ORDER XXXIII Rule 5 reads as under:order XXXIII (SUITS BY INDIGENT PERSONS) 1. In this regard, the learned Counsel has brought to the notice of the Court that these provisions are amended by the Karnataka Amendment to Order xxxiii Rule 5. ( 7 ) ORDER XXXIII Rule 5 reads as under:order XXXIII (SUITS BY INDIGENT PERSONS) 1. SUITS MAY BE INSTITUTED BY INDIGENT PERSON: rule 5 :- REJECTION OF APPLICATION :- The Court shall reject an application for permission to sue as (an indigent person)- (a) Where it is not framed and presented in the manner prescribed by rules 2 and 3, or (b) Where the applicant is not (an indigent person), or (c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as (an indigent person): (Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person), or (d) Where his allegations do not show a cause of action, or (e) Where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject-matter, (or) (f) Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or (g) Where any other person has entered into an agreement with him to finance the litigation ). ( 8 ) THE Karnataka Amendment to Order XXXIII Rule 5 (a) alone reads thus :-"5 (A ). WHERE it is not framed and presented in the manner, prescribed by Rules 2 and 3 and the applicant when required by the Court to rectify the defect within a time to be fixed by the court fails to do so". ( 9 ) THE submission of the learned Counsel is that in view of this amendment it is the bounden duty of the Court to point out the defects if there are any, in presenting a petition under Order XXXIII rule 3 of CPC and an opportunity should be accorded to the petitioner to rectify the defects within the stipulated time and thereafter, only when the petitioner fails to do so, such a petition may be rejected under Rule 5. Learned Counsel has submitted that, such an enabling provision having been specifically introduced by the Karnataka Amendment, the learned Trial Judge is totally in error in ignoring these statutory provisions and in proceeding to dismiss the petition for non-compiiance with the requirements of Order XXXIII rules 2 and 3 of CPC. It is further submitted by the learned Counsel that with regard to the requirement of mentioning of the cause of action in the petition, that this cause of action is the same to be mentioned in the plaint and the copy of the plaint should be attached to the petition and in this view, even if the cause of action has not been mentioned in the petition, it is only a technical default and having regard to the spirit of Karnataka Amendment in Order XXXIII rule 5 (a), an opportunity should be given to the petitioner to rectify this defect also and at any rate dismissing the application on such ground is contrary to the statutory provisions and as such, the order is liable to be set aside and remanded to the Trial Court, enabling the appellant/petitioner to rectify the defect and present a proper petition. ( 10 ) SRI Mensinkari, learned Government Advocate who had been issued with notice in this Appeal and appearing on behalf of the state submitted that the Trial Judge having examined the matter and after the application had been registered and evidence had been let in, has looked into the merits of the matter and has recorded a finding in the context of the merits of the matter and having found that the appellant/petitioner having not disclosed not only cause of action but also having failed to prove that he is a person not possessed with sufficient means to pay requisite Court-Fee, dismissed the petition. The order dismissing the petition is one based on the merits of the petition as well, and it is not merely rejecting the petition on a technical point of non-compliance and when once order has been dismissed on merits as welt, the question of according an opportunity to the appellant/petitioner to rectify certain defects and re-presenting the same, does not arise. ( 11 ) SRI Sanathkumar Shetty, learned Counsel appearing on behalf of the 4th respondent while supporting the arguments put-forward by the learned Government Advocate on behalf of the State has submitted further that, inview of the provisions of Order XXXIII Rule 8 of CPC, petition seeking for suing as an indigent person should be self-sufficient and when once an application is granted, the petition itself being converted as a plaint in the suit, it is very necessary that the cause of action should have been mentioned in the petition itself and if no such cause of action is mentioned in the petition, it amounts to the plaint not disclosing any cause of action and as such, the petition ought to be rejected on this ground. ( 12 ) IN view of the rival submissions of the learned Counsel appearing on behalf of the parties, the question that falls for consideration is as to whether the dismissal of the petition by the learned Trial Judge is in accordance with law and further as to whether the Karnataka Amendment to Order XXXIII Rule 5 (a) of cpc can be said to have any bearing warranting interference at the hands of this Court in the present matter. ( 13 ) ON a perusal of the order passed by the learned Trial Judge, it is clear that the parties had been permitted to lead evidence. Appellant/petitioner has also placed material before the Court disclosing as to some of his assets. It has also come on record that the appellant/petitioner was a businessman carrying on business in timber. With regard to the want of sufficient means, what has been narrated in his evidence is that the petitioner was living with his father-in-law as income from his own business and other properties were not sufficient and as such, is a person not possessed of sufficient means for paying the Court-Fee. ( 14 ) THE learned Trial Judge on an examination of such factual position and on applying the relevant case law of which the Court below was made aware of by the learned Counsel by citing a number of cases before the Court, came to the conclusion that:1. Petition did not disclose cause of action. 2. ( 14 ) THE learned Trial Judge on an examination of such factual position and on applying the relevant case law of which the Court below was made aware of by the learned Counsel by citing a number of cases before the Court, came to the conclusion that:1. Petition did not disclose cause of action. 2. Appellant/petitioner had not discharged the burden to prove that he is not a person of sufficient means to pay the Court-Fee, particularly when it was found that he was a person possessing of considerable extent of property as admitted by the appellant/ petitioner in the course of evidence and further that the appellant/ petitioner had not placed any material with regard to the actual quantum or amount of income that he was deriving from the business of timber which he admittedly was carrying on. ( 15 ) THE learned Trial Judge has also recorded a finding that the petitioner had not complied with the requirements of Order XXXIII rules 1 and 2 of CPC which are mandatory provisions. In view of such findings, the learned Trial Judge has dismissed the petition. ( 16 ) THE dismissal of petition is not merely on non-compliance of any technical requirement but on merits as well recording a finding based on the evidence let in by the parties. ( 17 ) EVEN with regard to the submission of the learned Counsel for the appellant/petitioner regarding Karnataka Amendment, Order xxxiii Rule 5 (a), I notice that the said amendment is only in; respect of Rule 5 (a) while the Central Act enjoins upon the Court to reject an application for permission to sue as an indigent person when it was not framed and presented in the manner prescribed by the Rules 2 and 3 of CPC which by way of Karnataka Amendment has been modified allowing it to the discretion of the Court to permit such an applicant to rectify the defect within the time to be fixed by the Court and even then if the applicant fails to do so, to reject the same. The amendment is confined to this provision of Order XXXIII Rule 5 (a)of CPC alone and noting beyond. The amendment is confined to this provision of Order XXXIII Rule 5 (a)of CPC alone and noting beyond. ( 18 ) ON a reading of the provisions of Order XXXIII Rule 5, it becomes obvious that the Court shall reject an application for permission to sue as an indigent person if anyone of the requirements under sub-clauses (a), (b), (c), (d), (e), (f) and (g) are not complied. In the instant case, apart from non-fulfillment of the requirement of sub-clause (a), the requirement of sub-clause (d) is also not fulfilled inasmuch as the finding recorded by the Trial Judge is that the petitioner did not disclose any cause of action. It can also be inferred that the requirement of sub-clause (b) namely "where the applicant is not an indigent person" is also not fulfilled. In the instant case inasmuch as the finding recorded by the Trial Judge is that the appellant/petitioner had failed to prove that he is a person not possessing sufficient means to pay required Court-Fee particularly in the context of possessing considerable extent of property and carrying on business. In this view of the factual position and the learned Trial Judge having examined the matter on merits as well, I do not find any infirmity in the impugned order. Even assuming for argument sake that rejection on the ground of non-compliace with order XXXIII Rule 5 (a) was not justified in view of the Karnataka amendment, in the present case, the Karnataka Amendment does not make any difference to the outcome of the application. ( 19 ) IN this view of the matter, I am of the opinion that this is not a fit case where this Court is required to interfere with the order passed by the learned Trial Judge. Accordingly, Appeal is dismissed. No order as to costs.