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2004 DIGILAW 1578 (RAJ)

Neni Devi v. Maji Ranawat Ji

2004-10-28

PRAKASH TATIA

body2004
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. This appeal is against the order dated 21st Nov., 1988 by which the trial Court rejected the application of the appellants-plaintiffs filed under Order 33 Rule 1, CPC and refused the permission to the appellants-plaintiffs to maintain the suit without paying Court fees of Rs. 12,848/-only. 3. Brief facts of the case are that plaintiffs, who were in number 8 filed the application under Order 33 Rule 1, CPC alongwith the suit for declaration that the sale deeds executed in favour of defendants No. 6 to 8 in between 17th March, 1980 to 1st July, 1980 are ineffective to the interest adverse to the plaintiffs in the property in question and for declaration that Patta obtained by Akhe Singh on 26.02.1955 and the gift deeds executed by said Akhe Singh in favour of defendants No. 2 to 4 are also of no effect against the interest of the plaintiffs so far as it relates to the property involved in the suit. The plaintiffs further sought declaration that the plaintiffs may be declared owner of the property in dispute in view of the Will executed in Samwat Year 1915. The application under Order 33 Rule 1, CPC and the suit were filed on 04.07.1983. The plaintiffs annexed schedule of their properties alongwith the application as required under Order 33 Rule 2, CPC. As per the schedule, none of the plaintiffs owns any immovable property nor they possess any gold ornaments. The plaintiffs No. 4 to 6 were minor at that time. The plaintiff Nena Devi disclosed her silver ornaments of Rs. 2,000/-. Gulab Devi disclosed silver ornament, one ‘Chhara’ having value of Rs. 1,000/-. Pushpa Devi disclosed two silver bangles having value of Rs. 2,000/-only. Rajendra Singh and Girdhari @ Girwar both were in service. Rajendra Singh was employee in the railway department whereas Girdhari @ Girwar was helper-II in RSEB at relevant time. The salary of Rajendra Singh at the relevant time was said to be Rs. 500/-and Girdhari @ Girwar had salary of Rs. 1,000/-only. 4. In the trial Court, the plaintiffs, Nena Devi, Pushpa Devi, Gulab Devi, Girdhari @ Girwar and Rajendra gave their own statements. No evidence was produced by the defendants. As stated above, the plaintiffs are seeking exemption from paying the Court fees of Rs. 500/-and Girdhari @ Girwar had salary of Rs. 1,000/-only. 4. In the trial Court, the plaintiffs, Nena Devi, Pushpa Devi, Gulab Devi, Girdhari @ Girwar and Rajendra gave their own statements. No evidence was produced by the defendants. As stated above, the plaintiffs are seeking exemption from paying the Court fees of Rs. 12,848/-in a suit, which was filed in the year 1985, the plaintiff s application was dismissed by trial Court vide order dated 21st Nov., 1988. During the pendency of this appeal, the appellant No. 1 expired and number of defendants also expired. The appeal is pending before this Court for last almost 15 years for deciding whether the plaintiffs can pay the Court fees of Rs. 12,848/-only. The trial Court considered the evidence of the plaintiffs and found that almost all the plaintiffs have not disclosed true and correct facts about their movable properties. However, the trial Court also observed that plaintiff No. 1’s husband is also a Government servant and her two sons are also Government servants. The plaintiff Pushpa Devi though disclosed her immovable property as silver bangles having market value of Rs. 2,000/-but from her statement it was found that she had 27 to 28 Tolas of the silver ornaments, which includes number of item and not only silver bangles. 5. According to learned Counsel for the appellant, the Court below has committed serious error of law when the Court below taken into account the properties of other persons, may it be of husband of the plaintiff or any other relative. It is submitted that except the property of the plaintiff himself no other property could have been taken into account. Learned Counsel for the appellant vehemently submitted that all the properties, which were disclosed by the plaintiffs are exempted from attachment of Section 60 of the CPC, therefore, the said property cannot be taken into account for assessing the capacity of the plaintiffs to pay the Court fees amount. Learned Counsel for the appellant further submits that assuming for the sake of arguments that plaintiff acquired some movable properties in the form of ornaments and they can be taken into account, still those articles are exempted under Section 60 of the CPC, therefore, those articles cannot be taken into account. Learned Counsel for the appellant further submits that assuming for the sake of arguments that plaintiff acquired some movable properties in the form of ornaments and they can be taken into account, still those articles are exempted under Section 60 of the CPC, therefore, those articles cannot be taken into account. It is further submitted that the capacity of the plaintiffs is required to be assessed as on the date of filing of the pauper application and not from any subsequent date. Learned Counsel for the appellant submits that the employees Rajendra Singh and Girwar Singh, though were earning salary, but that salary is also exempted under Clause (i) of Section 60 of the CPC. 6. I considered the submissions of learned Counsel for the parties. So far as contention of learned Counsel for the appellant is concerned that the property of the plaintiffs alone can be looked into while assessing the capacity of the plaintiffs regarding payment of Court fees is concerned, is a valid argument and the trial Court could not have dismissed the application of the plaintiffs by including financial capacity of the plaintiff No. 1’s husband or any relation of plaintiffs. Here in this case, though there are observation of the trial Court that not only Rajendra Singh and Girwar Singh pliantiffs are in service, but husband of the plaintiff No. 1 Pushpa Devi is also a salaried employee, but that was not the ground for rejection of the application of the plaintiffs. The trial Court considered the statement of each and every witnesses in detail and found that plaintiffs deliberately did not disclose their properties correctly in the schedule. If the statement of all the plaintiffs are considered with the schedule annexed to the plaint, it is clear that they possessed more properties than the properties mentioned in the schedule. Nena Devi disclosed her silver ornament as ‘Todiya’ etc. The schedule contains no weight for any ornaments and what are the ‘etc’ have not been disclosed. Gulab Devi disclosed only one ‘Chhara’. Gulab Devi in her statement stated that she had 5 silver bangles, which are used for wearing in the legs, weighing 5 Tolas. Pushpa Devi disclosed silver bangles for hands etc. without disclosing their weight and what are those ‘etc’. Gulab Devi disclosed only one ‘Chhara’. Gulab Devi in her statement stated that she had 5 silver bangles, which are used for wearing in the legs, weighing 5 Tolas. Pushpa Devi disclosed silver bangles for hands etc. without disclosing their weight and what are those ‘etc’. Clause (a) of the proviso to Sub-section (a) of Section 60 provides exemption from attachment of the necessary wearing-apparel and personal ornaments which in accordance with religious usage cannot be parted with by any woman. The Sub-clause (i) exempted from attachment to the salary to the extent and first 1,000/-rupees. The trial Court observed that the plaintiffs failed to prove that all the ornaments were necessary as per their religious usage and the plaintiffs woman could not have been parted with the ornaments. On these grounds, the trial Court rejected the application. 7. As stated above the property of relatives of the plaintiffs could not have been taken into account and has not been taken into account by the trial Court, but so far as non-disclosure of properties by the plaintiffs, caused serious doubt about credibility of the witnesses and about their capacity to pay the Court fees amount of Rs. 12,848/-only by two plaintiffs, who are in employment, one is in the Railway Department and another is in the RSEB. This is not a question of even only not disclosing the total property of the plaintiffs, but it is a case where the credibility of the witnesses is shaken totally and, therefore, the statement of the witnesses cannot be believed to prove that they had no capacity to pay the Court fees of Rs. 12,848/-only. Apart from it, it appears from the facts of the case that the plaintiffs submitted the petition under Order 33 Rule 1, CPC as back as in the year 1983 and the two of the plaintiffs are admittedly in service, one in the employment of the Union of India and another in State Electricity Board. The second explanation to the Rule 1 of Order 22, CPC provides that the property, which is acquired by plaintiffs after presentation of the application seeking permission to sue as an indigent person can be taken into account in considering the question whether the applicant is indigent person or not. The second explanation to the Rule 1 of Order 22, CPC provides that the property, which is acquired by plaintiffs after presentation of the application seeking permission to sue as an indigent person can be taken into account in considering the question whether the applicant is indigent person or not. Since, the trial Court rejected the application on the basis of valid reasons, and if any other view is possible today in the year 2004, this Court can presume that two of the salaried persons-applicants cannot say that they have no capacity to pay the Court fees of Rs. 12,848/-. Therefore, this Court is not inclined to interfere in the order dated 21st Nov., 1988. The plaintiffs can have avoided the delay of almost about at least 16 years after the decision of the trial Court order by paying the Court fees of Rs. 12,848/-only by accepting the realities. 8. Be that as it may, I do not find any merit in the appeal. Hence, the appeal of the appellant is dismissed. However, the appellants are further permitted two months time to pay the Court fees of Rs. 12,848/-from today. Upon submitting the Court fees, the suit may be registered and in case of non-submitting the Court fees, the suit shall stand dismissed.