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2013 DIGILAW 1366 (KAR)

K. N. Umadevi v. Hafisa Bi

2013-12-04

B.S.PATIL

body2013
Judgment : 1. Petitioner has filed this civil petition under Order 44 Rule 1 CPC seeking permission to file regular first appeal challenging the judgment and decree dated 23.04.2011 passed in O.S.No.383/2007 as an indigent person. 2. The suit filed by the petitioner seeking relief of declaration of her title over the suit schedule property including for cancellation of the sale deed dated 04.2.1985 and for permanent injunction to restrain the defendant from interfering with her peaceful possession and enjoyment of the suit schedule property has been dismissed. In the Regular First Appeal filed by the petitioner, she is required to pay Court fee of Rs.6,28,051/-. 3. It is the case of the petitioner that she is not in a position to pay the Court fee as she does not have any resource to arrange for payment of Court fee. It is her case that during the pendency of the proceedings before the trial Court, the suit schedule property was acquired by the KIADB as per the notification dated 25.08.2007 and an award has been passed on 16.11.2009. It is her further case that except the suit schedule property, petitioner does not own any other immovable or movable properties and that she is not employed and hence has no source of income. 4. This Court directed the learned Government Pleader to take notice and secure the report from the jurisdictional revenue officer regarding the means possessed by the petitioner. Accordingly, the report of the Tahsildar has been obtained by the learned Government Pleader and is placed before the Court for perusal. 5. On 22.11.2013, after perusing the report of the Tahsildar, this Court passed the following order: "The Tahsildar's report discloses that the petitioner does not have her own source of income and that she is staying in Kolar in her husband's house and that her husband is a Government employee. Apparently, the income of the husband or the property owned by him may not be considered for deciding the capacity of the petitioner to pay the Court fee. Learned counsel for the parties request for sometime to examine this aspect and make their submission. List this matter on 28.11.2013." 6. Thereafter, the matter is listed today. I have heard the learned counsel for both parties. 7. Learned counsel for the parties request for sometime to examine this aspect and make their submission. List this matter on 28.11.2013." 6. Thereafter, the matter is listed today. I have heard the learned counsel for both parties. 7. Although the learned Government Pleader submits that the husband of the petitioner is a salaried person and his income from out of the salary is Rs.3,60,000/- per annum and that he owns a house property measuring 12' x 65' at Kolar, apparently, the property of the husband cannot be taken into consideration for the purpose of finding out the source of income of the wife to pay the Court fee in the appeal, to protect her interest in respect of her property. At any rate, the income of the husband derived from the salary and house property where he is residing along with his wife cannot be considered for the purpose of finding out her source to augment the amount of Rs.6,28,051/-. The petitioner and her husband have to survive on the salary derived from the husband of the petitioner. They have to reside in the house premises. They cannot be made to forego the two sources of their livelihood to make the petitioner to pay the Court fee of Rs.6,28,051/-. Confronted with this, learned counsel for the respondent fairly submits that the civil petition may be allowed with a direction to the Registry to post the regular first appeal before the Court at the earliest possible date. 8. In the light of the above, it is clear that the petitioner does not have any means to arrange for payment of huge amount of Court Fee of Rs.6,280,51/-. She has established her indigence. She is not able to pay the Court fee. 9. It has to be noticed here that the property which is the subject matter of the suit and the appeal has been since acquired and the KIADB has already determined the compensation payable for this land and the same is deposited before the Court below. In case the petitioner succeeds in this appeal, she has to pay the Court fee from out of the compensation to be received by her. On such condition, this petition is allowed and the following order is passed. 10. Petitioner is permitted to file and prosecute this appeal without paying the Court fee as an indigent person. In case the petitioner succeeds in this appeal, she has to pay the Court fee from out of the compensation to be received by her. On such condition, this petition is allowed and the following order is passed. 10. Petitioner is permitted to file and prosecute this appeal without paying the Court fee as an indigent person. In case she succeeds in the appeal, from out of the compensation payable to her, the amount of Rs.6,28,050/- payable as Court fee shall be paid/recovered from the petitioner. 11. In view of the urgency pleaded by the learned counsel for the respondent, Registry is directed to post the regular first appeal before the appropriate Bench for consideration of the interlocutory application immediately.