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2012 DIGILAW 3342 (MAD)

S. Nagarajan v. S. P. Thirumalaisamy

2012-07-27

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 7.02.2011 passed in I.A.No.64 of 2009 in unnumbered Pauper Appeal No.......of 2009, by the on the file of the Principal District Judge, Namakkal, this civil revision petition is focussed. 2. Heard both sides. 3. A thumbnail sketch of the relevant facts absolutely necessary for the disposal of this revision, would run thus: The respondent herein filed the suit for recovery of money based on a pro note. After contest the suit was decreed, as against which the defendant who is the revision petitioner herein, preferred appeal informa pauperis. The appellate Court after hearing both sides, rejected the prayer of the defendant to file the appeal informa pauperis. 4. Being aggrieved by and dissatisfied with the said order, this revision has been focussed on various grounds. 5. The learned counsel for the petitioner placing reliance on the grounds of revision, would pilot his arguments to the effect that absolutely there is no iota or shred, shard or miniscule extent of evidence to show that the defendant is having sufficient amount to a tune of Rs.31,525/- to pay as Court fee and prosecute the appeal. Simply because there is admission on the part of the revision petitioner that he is having half share in the agricultural land of 2-1/2 acres, and that he is having half share in the dilapidated house, it does not mean that he is having sufficient means to pay such a huge Court fee. Unless there is evidence to show that he is having sufficient income to pay such a huge Court fee, the question of he filing the appeal informa pauperis would not raise, but the appellate Court simply taking into account the existence of the immovable properties over which the revision petitioner is having interest, dismissed the prayer, warranting interference in the revision. 6. Per contra, in a bid to extirpate and torpedo the arguments as put forth and set forth on the side of the revision petitioner, the learned counsel for the respondent would pilot his arguments, which could succinctly and precisely be set out thus: There is a candid and categorical admission on the part of the revision petitioner herein before the appellate forum that during the year 1993 the said agricultural property was purchased for a sum of Rs.1,00,000/-. If that be so, it is easily understandable that during the year 2011 that would be worth not less than Rs.20 lakhs, taking into account the escalation in value of the landed properties. Over and above that, there is admission on the part of the petitioner that he is having half share in the house also. 7. The core question arises as to whether law envisages that such a person be allowed to file appeal suit without paying meagre Court fee of Rs.31,525/-. 8. The point for consideration is as to whether in the admitted factual matrix, the lower court was justified in rejecting the prayer of the revision petitioner to file the appeal informa pauperis? 9. Indubitably and indisputably, unarguably and unassailably, the revision petitioner is having half share in an extent of 2-1/2 acres of land, which totally was worth of Rs.1,00,000/- during the year 1993. It could safely be presumed that during the year 2011 such a property would be atleast 15 times more than the value which prevailed during the year 1993. As such it could be taken that the property might have been worth atleast Rs.15 lakhs during the year 2011. So far the house is concerned, the learned counsel for the petitioner would submit that it is in down at heels and he is only residing in the pial of the house, as there is no worthy the name of the house situated there. However, the learned counsel for the respondent would submit that these are all cock and bull stories dished out purely for the purpose of wriggling out of his liability to pay the Court fee of Rs.31,525/-. 10. The learned counsel for the petitioner would also further submit that he also availed loan from Co-operative Society and in connection with it, he mortgaged his property etc. 11. A mere poring over and perusal of the order of the first appellate Court, would reveal that he considered the oral evidence as well as the documentary evidence on both sides and felt that the defendant who filed the appeal had the financial wherewithal to pay the Court fee of Rs.31,525/-. 12. I would like to fumigate my mind with the following proviso of law. 12. I would like to fumigate my mind with the following proviso of law. Order XLIV Rule 1 read with Order 33 Rule 1 "Order XLIV Rule 1: Who may appeal as an indigent person.-(1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suit by indigent persons, in so far as those provisions are applicable:" Order XXXIII Rule 1: Suits may be instituted in forma pauperis.--Subject to the following provisions, any suit may be instituted by an indigent person. Explanation I.- A person is an indigent person,- (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit. Explanation II.- Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III.-Whether the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity." 13. A mere poring over and perusal of those provisos, would leave no doubt in the mind of the Court that what are all the Court is expected to get itself satisfied before ordering an application is that, it is to see as to whether the proposed indigent person is possessed of sufficient means to enable him to pay the Court fee prescribed by law. Even by phantasmagorical thoughts it cannot be stated that a person owing half share in the landed property totally worth Rs.15 lakhs and also half share in a presumably dilapidated house should be declared as a pauper. Even by phantasmagorical thoughts it cannot be stated that a person owing half share in the landed property totally worth Rs.15 lakhs and also half share in a presumably dilapidated house should be declared as a pauper. In view of he having constrained to pay the Court fee of Rs.31,525/-, in these present days the standard payment of Court fee of Rs.31,525/-, cannot be stated to be a huge amount and that too for a person having half share in landed property worth Rs.15 lakhs and also half share in a house. Precisely the petitioner himself has not chosen to produce the valuation certificate for obvious reasons. 14. The learned counsel for the petitioner would submit that the Karnam certificate which he relied on would show that no income is derived out of that agricultural land. If that be so, I am at a loss to understand as to why then he should keep such land for nothing. Be that as it may , once it is found established that he is having worthy immovable property with him, the question of declaring him as pauper that he is incapable of paying such Court fee of Rs.31,525/-, would lead to travesty of justice and that would be a bad precedent. However, I am of the view that granting of fifteen days time as it was granted by the lower Court for payment of Court fee would not be proper, at least three months' time from the date of receipt of a copy of this order to pay such Court fee would meet the ends of justice and accordingly, it is ordered, while dismissing this revision. 15. The learned counsel for the petitioner would make an extempore submission that in the meanwhile if the property of the judgment debtor is proceeded against in the E.P. at the instance of the respondent, then he would be put to discomfiture and difficulties and the entire appeal would be ended in nugatory. 16. I could see considerable force in the submission made by the learned counsel for the revision petitioner. Accordingly, I would direct that till the time granted for payment of Court fee, the decree holder shall not proceed with the E.P. With the above direction, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.