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2005 DIGILAW 9 (KER)

Babu v. Banumathy Menon

2005-01-05

M.N.KRISHNAN, R.BHASKARAN

body2005
Judgment :- Bhaskaran, J. The appellant is the applicant in an application for permission to file the suit as an indigent person. The trial court dismissed the application finding that there is no bona fides in the application and that he is misusing the provision in Order 33 Rule 1 of the Code of Civil Procedure which is intended only to genuine cases of indigent persons. 2. The suit is for specific performance of an oral agreement for sale of 5 cents of land and building admittedly owned by the defendant. When the defendant sent notice for eviction of the plaintiff from the building the present suit was filed with the following allegations. The defendant agreed to sell the plaint schedule property for a consideration of Rs.2,25,000/- on 8-2-1997 and an amount of Rs.1,00,000/- was paid on the same day. The document to be executed on or before 30-1-2001. Possession was also given to the plaintiff on the date of agreement. The plaintiff reconstructed the two rooms in the plaint schedule property. The plaintiff was always ready and willing to pay the balance sale consideration and to get the deed registered. But on request of the defendant the plaintiff paid an amount of Rs.50,000/- on 10-1-2000 and the date for execution of document was extended upto 20-8-2002. After preparing the balance sale consideration, the plaintiff approached the defendant to execute the sale deed and he is still prepared to pay the balance sale consideration. The plaintiff filed the suit after paying 1-10th of the court fee payable. Subsequently, he filed the application for permission to sue as an indigent person with regard to the balance court fee which comes to Rs.13,893/-. 3. In the application for permission the averments are different. In the application, he has stated that he is a tailor by profession and there is no income from his business. It was as helped by his relatives that he entered into the agreement for purchase of the property. They are not in a position to held the plaintiff at present. Except the property shown in the schedule of the petition, he has no other asset. The value of the entire assets as shown in the schedule is only Rs.810/-. 4. Therefore, his averments in the plaint that he was always ready with the balance consideration of Rs.75,000/- is given a go by in the petition. Except the property shown in the schedule of the petition, he has no other asset. The value of the entire assets as shown in the schedule is only Rs.810/-. 4. Therefore, his averments in the plaint that he was always ready with the balance consideration of Rs.75,000/- is given a go by in the petition. On the other hand, his case in the petition is that his relatives who promised to held have found it difficult to help him. The question to be considered is whether in such a case the application can be allowed. 5. Under Order 33 Rule 2, it is mandatory that the application shall contain the particulars required in the plaint in the suit and contain schedule of movable and immovable properties belonging to the applicant. To satisfy the requirement of S.16(c) of the Specific Relief Act, the plaintiff should aver in the plaint that he was always ready with the balance sale consideration. But in the petition, he has no case that he was ready with the balance consideration. On the other hand, he stated that his relatives who promised to help him have backed out. It is therefore a case where the plaintiff has failed to make the averments as required in the plaint in the petition for permission to sue as an indigent person. In this case, after making the averments regarding readiness and willingness in the plaint and paying 1/10th court fee, the plaintiff filed the petition for permission to sue as an indigent person. In the application, there is no averment satisfying S.16(c) of the Specific Relief Act and under Rule 5, the court in bound to reject the application if the petition does not satisfy the requirements of Rule 2 of Order 33 of the Code of Civil Procedure. If as a matter of fact he had the balance Rs.75,000/- he failed to disclose it in his petition. He has not disclosed in the petition his cash in hand out of his business. 6. Shri. Shreekumar G. (Chelur) contended that while finding out the means of the applicant the subject matter of the suit is to be excluded and therefore even if he was having the balance consideration of Rs.75,000/- with him he was still entitled to file the suit as an indigent person. 6. Shri. Shreekumar G. (Chelur) contended that while finding out the means of the applicant the subject matter of the suit is to be excluded and therefore even if he was having the balance consideration of Rs.75,000/- with him he was still entitled to file the suit as an indigent person. He relied on the following passage from the judgment of Mithal, J., in Nathu Singh v. Jagadish Singh (AIR 1992 Allahabad 174). “Apart from this, S.16 of the Specific Relief Act only requires that a person should be ready and willing to perform the terms of the contract but does contemplate the eventuality of a suit. A person may be fully equipped for performing the contract but if, for any reason, circumstances compel him to seek recourse by way of suit, he may find himself in a situation that he may be unable to manage the extra expenses required for litigation. The capacity to perform the contract and the capacity, to finance litigation are two distinct aspects. Mere incapability to fend for the litigation cannot necessarily lead to the conclusion that he lacks money for performing his apart of the contract. In view of this, in my opinion, the approach of the courts below in this mater was erroneous and contrary to law.” In fact these observations are really out of context in so far as the present case is concerned. In Nathu Singh’s case, the plaint was filed on the closing date of court for vacation with court fee of Rs.16/-. The plaintiff applied for two months’ time to pay balance court fee as court fee stamps were not available. The court granted one month’s time. As per the plaint, the balance court fee payable was Rs.1,433.50. On the last date allowed by court the plaintiff paid Rs.1,150/- and prayed for further time to pay Rs.283.50 as he was under a wrong impression about the correct balance court fee payable. On the next date the balance court fee was also paid. On these facts the trial court as well as the appellate court held that the plaintiff had no requisite money to get the sale deed executed. That decision was reversed and the second appeal was allowed by the High Court. It is thus clear that no question with regard to Order 33 of the Code of Civil Procedure was either directly or indirectly involved in that case. That decision was reversed and the second appeal was allowed by the High Court. It is thus clear that no question with regard to Order 33 of the Code of Civil Procedure was either directly or indirectly involved in that case. But we appreciate the effort made by the learned counsel in finding out the passage, though quoted out of context, which may held the reasoning of the learned counsel for the appellant. We are however, clear in our minds that on the failure to comply with Rule 2 of Order 33, the consequence under Rule 5 is a statutory mandate which cannot be overlooked. It is true that the provision has to be liberally construed so that the really deserving litigant should not be shut the doors of justice merely because he has no court fee to be paid. At the same time, we have to make sure that the provision is not misused by any of the applicants. 7. Some what similar question arose before the Madras High Court in Muthu Krishan v. Venkata (AIR 1951 Madras 758). In that case, Basheer Ahmed Sayeed, J., has held as follows: “Even granting that the Ct. was right in having exempted the pauper from appearing in Ct. on his application for such exemption the point still arises as to whether the pauper has complied with the requirement of law that when he sues for specific performance of a contract he should aver & prove his continuous readiness and willingness, from the date of the contract to the time of the hearing of the suit, to perform the contract. In the petition presented by him there is actually no such averment. Far from that, the very fact that he is proposing to sue as a pauper precludes him, from making any such averment and even if any such averment is to be made in a pauper petition, it will by itself be a ground to dispauper the applicant and consequently there can be no substance in any such averment. In Ardeshir H. Mama v. Flor Sassoon, 52 Bom.597, at P.619: (AIR (15) 1928 PC 208), the Judicial Committee has specifically laid down the principle of law that is to govern such cases where specific performance of contracts is claimed. In Ardeshir H. Mama v. Flor Sassoon, 52 Bom.597, at P.619: (AIR (15) 1928 PC 208), the Judicial Committee has specifically laid down the principle of law that is to govern such cases where specific performance of contracts is claimed. This case comes within the scope of that decision and in view of that decision, and in the absence of any averment and any capacity on the part of the pauper to tender the purchase price I cannot but hold that the pauper petition, cannot be admitted.” In that case though the trial court allowed the applicant to file the suit as a pauper, the High Court dismissed the application. 8. The learned counsel, for the appellant contended that the District Collector has reported that the appellant has no other immovable property and that there was no counter filed by the respondent and that the petitioner was not cross-examined. Still the trial court dismissed the application. We are of opinion that the trial court has only done its duty and only thing we notice is that the trial court could have given the reasons in a little more detail. We have tried to give the reasons which we think are proper reasons for dismissal of the application. We are of opinion that even if the contention of the learned for the appellant that the amount of Rs.75,000/- is the subject of the suit is to be accepted (on which aspect we do not express any opinion) the application has to be dismissed as there are no sufficient averment as required in the plaint in the petition and as there is no full disclosure of the income from the business conducted by the petitioner. In fact it contained contra averments also. This appeal is without any merit. However, we grant the appellant three weeks time from today to pay the balance court fee. If no balance court fee is paid within that time the trial court shall reject the plaint under Order 7 Rule 11. The appeal is disposed of as above. The parties shall bear their costs in this appeal.