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Madhya Pradesh High Court · body

2005 DIGILAW 1266 (MP)

Munnalal v. Maliya Bai

2005-12-09

U.C.MAHESHWARI

body2005
ORDER 1. Heard on the application filed by the applicant/appellant under Order 44 Rule 1 of the CPC. According to it, the appellant has no sufficient means to pay the requisite court-fee of this appeal. He has some share in the agricultural land, which is a joint property with other co-parceners and the members of the family and the worth of his share is only Rs. 4,000/-. Besides this, he is having other moveable property of Rs. 500/-. It is also stated that he is not having any other source of income from which he is earning more than Rs. 6,000/- per annum. The application is further supported by an affidavit of the appellant. No reply of it has been submitted by any of the respondent. 2. Earlier this application was sent to call the report from Collector Jabalpur vide order dated 21.1.2002. Subsequent to it various reminder have also been sent but no report has been submitted in this regard. Thus, this Court has no option, except to decide this application on the basis 0 the averments of it and the documents on record. 3. The averments of the appellant cannot be disbelieved at this stage According to it, the applicant appears to be an indigent and pauper person. Although he is having immovable property worth Rs. 4.000/- but such property is necessary for him for his livelihood and under the expectation of decree in this appeal, he could not be insisted to dispose of the property for submitting the court fees in this appeal. It is boarderline case of a poor person like appellant and such cases should be considered with justice oriented approach. Such question was raised earlier before this Court and the same was answered in the matter of Fulabai v. State of M.P. reported in 1998 (I) MPWN 58 in which it is held as under: Order XXXIII Rule 1A of CPC provides for an enquiry to be done by the Court for the purpose of finding out whether the persons seeking such permission is indigent or not. The said enquiry should be always be reasonable. The provisions of order XXXIII have been enacted for the purpose of allowing a person to sue as indigent, if he happens to be unable to pay the court-fee. The provisions of Order XXXIII have been enacted with a benevolent view. The said enquiry should be always be reasonable. The provisions of order XXXIII have been enacted for the purpose of allowing a person to sue as indigent, if he happens to be unable to pay the court-fee. The provisions of Order XXXIII have been enacted with a benevolent view. It never means that the indigent person should sell out all his property and put himself without any source of livelihood. That does not mean that he should sell the house and all belongings and should come on road for the purpose of paying the court-fee. The State has also issued notification keeping in view the same benevolent spirit behind the enactment of provisions of Order XXXIII of CPC. State, which is welfare State, would never desire that the citizens should be on road by selling their houses and belongings." It has been further held that: Shri Khan during the course of arguments argued that appellant No.2 has now retired and. Therefore, he can pay the court-fee from his pension. PF and gratuity amount. I do not find any force in the submission of Shri Khan because the pension, PF and gratuity are means of survival of a retired person/employee. The State never desired to deprive such a retired employee from such source of livelihood after retirement. This argument is inconsistent with the benevolent provisions of Order XXXIII and with this case wherein the appellant No. 1 happens to be a retired mill employee. The court-fee can be recovered from defeated plaintiff in accordance with legal process. In borderline cases attitude of the Courts should be broad minded. In democracy right to approach the Court for legal relief should not be denied on the ground of poverty. That is why our Constitution has taken care of that by making provisions of legal aid. Courts decision in this context would be consistent with that spirit of Art. 39-A of Constitution." 4. In the case at hand, the Collector was directed to submit the report but even after 5 years the report was not sent by the Collector. In the absence of such report, the appellant cannot be insisted to dispose of his aforesaid property for submitting the court fees\ as laid down in the aforesaid case." 5. Thus, keeping in view the aforesaid decision, this application is allowed. The applicant is permitted to prosecute the appeal as an indigent person. 6. In the absence of such report, the appellant cannot be insisted to dispose of his aforesaid property for submitting the court fees\ as laid down in the aforesaid case." 5. Thus, keeping in view the aforesaid decision, this application is allowed. The applicant is permitted to prosecute the appeal as an indigent person. 6. Office is directed to register this case as first appeal and list it before appropriate Bench for further proceedings. No order as to costs. Copy or this order be kept with the record of the appeal.