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Madhya Pradesh High Court · body

2009 DIGILAW 691 (MP)

Radha Bai v. Chain Singh

2009-06-16

K.K.LAHOTI, K.S.CHAUHAN

body2009
ORDER 1. Applicants have filed this application under Order 44 rule 1 CPC seeking permission of this Court to file first appeal as indigent persons. In the application, the applicants have disclosed that they are having a house property worth Rs.3 lakhs mortgaged with the Nagrik Sahakari Bank Maryadit and moveable property, wearing apparels of Rs.1,000/- and cooking utensils of Rs.1,000/- On notice respondent No.1 filed reply to the application on 2.4.2008 in which respondent No.1 disclosed that applicants were possessing land property bearing Khasra Nos. 12/4, 12/3, 13, 33 and 578 total area 9.308 Hectares of village Jhiganpur, Tahsil Seoni Malwa, District Hoshangabad. Respondent No.1 has also enclosed copy of Kistbandi Khatauni Annexure R/1 and from the perusal of the aforesaid, we find that names of the applicants were mutated on 17.12.2002. Respondent No.1 raised an objection that the applicants are not entitled to file the appeal as indigent persons. The aforesaid property has been concealed by the applicants in the application. The value of the land as per reply is Rs.30 lakhs. Apart from this, a house property has also been shown. It is also stated by the respondent No.1 that the applicants are earning Rs.1000/- per month. On the aforesaid grounds, the application filed by the applicants under Order 44 rule 1 was opposed. 2. The State has filed a report stating that applicants are owning a house property at 2591 E-Sector Nagar, Indore and were earning Rs.3,000/- per month by way of rent. Apart from this, applicant Vishnukant is also earning Rs.2,000/- per month as he is working as Grid Operator. No counter affidavit to the reply filed by the respondent No.1 has been filed by the applicants denying the fact as. stated in the reply. . 3. During course of the argument, learned counsel for the applicants submitted that he has received instructions from the local counsel that the land property which is referred to in the reply is subject matter of a civil suit in which applicants are defendants and they are not possessing the land and in fact there is no income to the applicants from the aforesaid land. It is submitted that as the land was not in possession of the applicants, they were not getting anything from the land, so aforesaid fact was not stated in the application. 4. It is submitted that as the land was not in possession of the applicants, they were not getting anything from the land, so aforesaid fact was not stated in the application. 4. From a perusal of the facts, we find that the applicants though were aware that they were having the aforesaid land in their name but have not disclosed this fact in the application under Order 44 rule 1 CPC. It was expected from the applicants that they ought to have disclosed this fact in the application with the explanation that the aforesaid land was not in possession of the applicants or aforesaid land was subject matter of some civil suit. But by concealing the aforesaid fact, the application filed by the applicants deserves to be rejected and the explanation put forth today during course of the argument appears to be an afterthought. So far as house property is concerned, the applicants have specifically stated in the application that it was mortgaged with Nagrik Sahkari Bank Maryadit and this fact has not been denied by the respondents. In view of the aforesaid fact that the house property was mortgaged with the bank, aforesaid property cannot be taken, into consideration while deciding the indigency of the applicants. The applicant Vishnukant ought to have disclosed this fact in the affidavit that he was earning Rs. 2,000/- per month but he has disclosed his income Rs.7800/- per month which appears to be incorrect. Though Shri Shroti submitted that the affidavit was filed in the year 2004 and during pendency of the application, the income might have increased but considering the fact that substantial land property of 9.308 hectares which belongs to applicants was concealed by the applicants, the application filed by the applicant deserves to be rejected. Accordingly we direct so and this MCC is dismissed. 5. As today, we have dismissed the application filed by the applicants under Order 44 Rule 1 CPC, in the interest of justice, we allow 30 days' time from today to the applilcants to make payment of court-fee in first Appeal.