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2002 DIGILAW 142 (AP)

B. G. Andalu v. G. S. J. Misra

2002-02-04

G.ROHINI

body2002
G. ROHINI, J. ( 1 ) THIS Miscellaneous Appeal is directed against the order dated 15-2-1991 in OP No. 43 of 1988 on the file of the Court of the Subordinate Judge, Chirala under which the request of the appellant for permission to sue as an indigent person has been refused. ( 2 ) THE brief facts of the case are as follows:the appellant herein filed OP No. 43 of 1988 under Order 33, Rule 1 of CPC seeking permission to sue as an indigent person. She stated in the application filed before the Court below that her husband was working in the Transport Corporation of India and that on 25-7-1987 the 2nd respondent went to the house of the appellant and took away all the valuable movables from the house high-handedly stating that the appellant s husband and five other who were deputed to Hyderabad on offices work and did not return and cheated the Company of large sums. In view of the threats received from the respondents the appellant was compelled to give a police report which was registered as Crime No. 104/87 on the file of the Chirala Town Police Station, consequent to which the police filed FTR into Court. According to the appellant the respondents are not entitled to take away the movables available in her house and since they refused to return either the movables or the value thereof, she is constrained to file civil suit seeking a decree for delivery of movables shown in the plaint schedule or in the alternative to grant a decree for a sum of Rs. 98, 390. 00 towards the value of the same with subsequent interest. The appellant also stated that the only property available was high-handedly taken away by the respondents and she has no other property, and therefore, she has no means to pay the Court-fee, and accordingly sought permission to sue as an indigent person. The Court below after recording the sworn statement of the appellant has taken the matter on file and issued notices to the respondents and to the Government Pleader, Ongole. The respondents 1 and 4 filed counter denying the allegations made in the petition contending that the appellant is not an indigent person and she is having landed property, house and gold jewellery, and therefore, she cannot be permitted to sue as an indigent person. The respondents 1 and 4 filed counter denying the allegations made in the petition contending that the appellant is not an indigent person and she is having landed property, house and gold jewellery, and therefore, she cannot be permitted to sue as an indigent person. ( 3 ) IN support of her case, the appellant got herself examined as PW1. On behalf of the respondents no evidence either oral or documentary was adduced. The Court below by order dated 15-2-1991 dismissed the said petition only on the ground that the appellant has failed to disclose her income as tutor, and therefore, it must be held that she came with unclean hands, and so she is not entitled to permission to sue as an indigent person. ( 4 ) AGGRIEVED by the said order, the present CMA has been filed. ( 5 ) HEARD the learned Counsel for the appellant as well as the learned Counsel for the respondents. ( 6 ) THE learned Counsel for the appellant submits that it is not open for the Court below to refuse permission to sue as an indigent person on the ground that she failed to disclose her income as tutor. The learned Counsel submits that the Court below failed to record any finding whether the appellant possessed sufficient means to pay the Court-fee but on the other hand dismissed the petition on a ground which does not come within the scope of Rule 5 of Order 33 of CPC and therefore, the impugned order cannot be sustained. Even on facts, the learned Counsel for the appellant contends that the conclusion of the Court below is unsustainable since though she stated in her evidence that she is eking out her livelihood by tuition s, there is absolutely no rebuttal evidence to show that the income from the said tuition s is sufficient to pay the Court-fee. Even on facts, the learned Counsel for the appellant contends that the conclusion of the Court below is unsustainable since though she stated in her evidence that she is eking out her livelihood by tuition s, there is absolutely no rebuttal evidence to show that the income from the said tuition s is sufficient to pay the Court-fee. ( 7 ) THE learned Counsel for the respondents submits that as per Rule 1-A of Order 33 of CPC, it is for the Court to decide whether the material placed before the Court by the appellant is sufficient to come to a conclusion as to her inability to pay the Court-fee and it is not for the respondents to establish that the appellant has possessed sufficient means to pay the prescribed Court-fee, and therefore, the Court below on the basis of the material available has rightly refused to permit the appellant to sue as an indigent person and the impugned order does not warrant any interference by this Court. ( 8 ) HAVING heard the learned Counsel for the appellant as well as the respondents, the question that arises for consideration is whether the Court below is justified in refusing permission to the appellant to sue as an indigent person on the ground of non-disclosure of her income in the application? ( 9 ) ORDER 33 of CPC enables the person, who does not possess sufficient means to pay the prescribed. Court-fee to institute the suit without payment of Court fee. A detailed procedure has been prescribed under Rules 1 to 7 of Order 33 of CPC requiring the Court to conduct necessary enquiry and to refuse permission to sue as an indigent person in the circumstances stated thereunder to avoid evasion of payment of Court-fee by fraudulent acts. ( 10 ) ON a combined reading of Rules 2 to 7 it can be seen that every application for permission to sue as a indigent person shall contain the particulars as required under Rule 2 and shall be presented in the manner prescribed under Rule 3. Then the Court may enquire the applicant or his agent as stated in Rule 4 and it is open to the Court to reject the application on any one of the grounds specified under Rule 5. Then the Court may enquire the applicant or his agent as stated in Rule 4 and it is open to the Court to reject the application on any one of the grounds specified under Rule 5. Thus under Rule 5 the Court is empowered to reject the application at the threshold for any reason stated under Sub-rules (a) to (g) of Rule 5. Where the Court sees no reason to reject the application on any one of the grounds stated under Rule 5, it shall fix a date for the evidence of the applicant to adduce in proof of his indigence and similarly for hearing the evidence of the opposite party and the Government Pleader in disproof thereof. Thereafter the Court shall examine the witnesses of other side and hear the arguments of the parties on the question whether the applicant is or is not subject to any of the prohibitions specified under Rule 5 and then either allow or refuse to allow the applicant to sue as an indigent person. Thus again under Rule 7, the Court is empowered, after considering the evidence and after hearing both the parties, to refuse permission to sue as an indigent on any of the grounds stated in Rule 5. ( 11 ) IT is necessary to extract Rule 2, which provides for the contents of the application, and Rule 5 of Order 33 CPC, which states the circumstances under which the Court shall reject the application for permission to sue as an indigent person. The said rules are as follows:rule 2. Contents of application :--Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. 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 (a) Where the applicant is not an indigent person, or (b ). . . . . . . . . . . (c ). . . . . . . . . . . (d ). . . . . . . . . . . . . . . . (c ). . . . . . . . . . . (d ). . . . . . . . . . . (e ). . . . . . . . . . . (f ). . . . . . . . . . . ( 12 ) IT is true that Rule 2 of Order 33 of CPC requires to furnish a schedule of any moveable or immoveable property belonging to the applicant with the estimated value thereof and Rule 5 (a) provides for rejection of application where it is not framed in the manner prescribed by Rule 2. Similarly under Rule 7 the Court is empowered to refuse permission to sue as an indigent person on the ground of prohibition specified under Rule 5 (c ). However the omission to mention a particular property in the application by itself should not result in refusal of the application. I am of the view that it is the duty of the Court, on the basis of the facts and circumstances of the case on hand to examine whether such omission is bona fide or a deliberate act of suppression to take undue advantage of the beneficial provisions under Order 33 of CPC. The Court shall not refuse permission in every case on mere omission as a matter of rule. The Court has to enquire and record its finding whether the applicant has means to pay the prescribed Court-fee even if the property not disclosed is taken into account. Where the Court on appreciation of evidence on record comes to a conclusion that even if the property not disclosed in the application is taken into account, the applicant has no sufficient means to pay the prescribed Court-fee, there is no justification in refusing permission to sue as an indigent person. Where the Court on appreciation of evidence on record comes to a conclusion that even if the property not disclosed in the application is taken into account, the applicant has no sufficient means to pay the prescribed Court-fee, there is no justification in refusing permission to sue as an indigent person. ( 13 ) IN B, Laxmi Devamma v. B. Monappa, 1989 (3) ALT 542 (DB), a Division Bench of this Court while considering the interpretation of Sub-rule (a) of Rule 5 of Order 33 of CPC observed that failure to comply with the requirements under Rules 2 or 3 of Order 33 of CPC which relates to pleadings cannot be treated as fatal and held as follows:"order 33, Rule 5 (a) does not say that omission to mention a particular property by itself entails the rejection of the application. For the defaulter, there is no way out excepting dismissal. . . . Such an interpretation would be supporting the "pound of flesh" theory. The defects in the pleadings can never be treated as incurable particularly in the case of poor who want to sue as indigent persons. The object of Order 33 is not to punish, but to enable the person to sue as an indigent person. The suppression of any property in the petition should not per se entail dismissal. " ( 14 ) WHILE holding so, the Division Bench declared that the decisions of this Court in Nuka Raju v. Rajani China Appanna, AIR 1977 AP 15 and State Bank of India, Secunderabad v. A. Kannabhiram, 1979 (2) ALT 28 (SN), do not represent the correct legal position. ( 15 ) IN the instant case, the Court below observed that the appellant in her evidence as PW1 stated that she is eking her livelihood by tuitions. From the record it appears that the said evidence was recorded in November, 1990. The Court below has taken an objection that in the application filed in the year 1988 the applicant did not disclose her income as tutor. On that ground the Court below held that the nondisclosure of her income as tutor amounts to suppression of fact and accordingly concluded that the applicant came to the Court with unclean hands and so she is not entitled to be permitted to sue as an indigent person. On that ground the Court below held that the nondisclosure of her income as tutor amounts to suppression of fact and accordingly concluded that the applicant came to the Court with unclean hands and so she is not entitled to be permitted to sue as an indigent person. In my considered opinion, the Court below on the basis of the evidence on record, ought to have recorded a finding whether the appellant has sufficient means to pay the prescribed Court-fee even if her earnings out of tuitions are taken into consideration. The impugned order in the absence of such finding cannot be said to be in accordance with taw and cannot be sustained. ( 16 ) FOR the reasons stated (supra), and as held by the Division Bench in B. Laxmi Devamma v. B. Konappa (supra), I am of the view that the Court below is not justified in dismissing the petition on the mere ground of non-disclosure of income of the appellant in the application filed seeking permission to sue as indigent person. Therefore, the impugned order is set aside, and the matter is remitted back to the trial Court for consideration afresh after recording a finding whether the applicant is an indigent person as defined under Explanation-I to Rule 1 of Order 33 of CPC on the basis of the evidence on record. ( 17 ) ACCORDINGLY, the civil miscellaneous appeal is allowed. There shall be no order as to costs.