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2013 DIGILAW 287 (CHH)

Jayant Prabhakar Mahajan v. Suman Sarde

2013-09-27

SANJAY K.AGRAWAL

body2013
ORDER 1. The appellant/plaintiff has preferred this appeal under Order 43, Rule 1(na) of the Code of Civil Procedure, challenging the order dated 3.8.2000, passed by the Second Additional District Judge, Jagdalpur in M.J.C. No. 3 of 1999, by which his application under Order 33 Rule 1 of the C.P.C. has been rejected. The brief facts for disposal of the appeal are as under: 2.1 The plaintiff filed a suit for possession and declaration of sale deed dated 1.5.1996 as null and void. The plaintiff, along with the suit, also filed an application under Order 33 Rule 1 of the C.P.C. for permission to sue as an indigent person. The said application was rejected by the trial Court vide order dated 5.1.2000. 2.2 Being aggrieved, the plaintiff/appellant preferred M.A. No. 768 of 2000 before the High Court of Madhya Pradesh and challenged the order dated 5.1.2000. The said appeal was decided by the High Court of Madhya Pradesh vide order dated 28.4.2000 with the direction to trial Court that the plaintiff/appellant's prayer under Order 33 Rule 1 C.P.C. shall be considered, in accordance with, the provisions therein. The trial Court in compliance of the Hon'ble Court's order again considered the application and passed the impugned order dated 3.8.2000, rejecting the application under Order 33 Rule 1 of the CPC, holding that the plaintiff has sufficient means to pay the Court fee. 2.3 In the course of enquiry, a report of the Collector was also obtained by the trial Court. The report of the Collector dated 14.12.1999 clearly records that in the name of the plaintiff/appellant there is a land in Rautpara, Jagdalpur bearing nazul sheet No. 48, plot No. 64/6, area 1050 square feet and the market value of said land is Rs. 75,600/-. The plaintiff is also a pensioner and getting Rs. 1458/- per month. 2. Shri Manoj Paranjpe, learned counsel appearing for the appellant/plaintiff vehemently submits that the findings recorded by the trial Court, holding that the appellant is not entitled to sue as an indigent person, is clearly bad and unsustainable in law. He further submits that the appellant/plaintiff has no sufficient means to pay the Court fees and as such he be permitted to sue as an indigent person by setting aside the order of the trial Court. 3. He further submits that the appellant/plaintiff has no sufficient means to pay the Court fees and as such he be permitted to sue as an indigent person by setting aside the order of the trial Court. 3. Replying the contentions made by learned counsel for the appellant, Shri Sri Kumar Agarwal, learned Senior Counsel, ably assisted by Shri Anand Gupta, learned counsel strenuously submits that the appellant/plaintiff is guilty of suppression of material facts, as while making the application under Order 33 Rule 1 of the C.P.C. for leave to sue as indigent person, the appellant/plaintiff was obliged to detail all moveable and immoveable properties with estimated value thereof, and those should have been signed and verified as per the manner prescribed. He further submits that the report of the Collector clearly indicates that the appellant/plaintiff has property, other than the suit property, worth Rs. 75,600/- as per the valuation made in the year 1999 and it cannot be said that he is an indigent person, having no sufficient means to pay the court fees. 4. I have heard learned counsel for the parties and considered the rival contentions made by them. 5. I have also perused the papers available on record, including the Collector's report, submitted pursuant to the order of the trial Court. A bare perusal of the report of the Collector would show that the appellant/plaintiff has land in Rautpara, bearing nazul sheet No. 48, plot No. 64/6, area 1050 square feet and the market value of which was Rs. 75,600/- in the year 1999 and the same was not included by the plaintiff/appellant in the list of properties owned by him, while submitting the application under Order 33 Rule 1 of the CPC before the trial Court. 6. Order 33 Rule 1, 2 and 5 of CPC provides as under: 1. Suits may be instituted by indigent person--Subject to the following provisions, any suit may be instituted by an indigent person. Explanation 1.--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 paint in such suit. Explanation 1.--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 paint in such suit. (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--Where 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. 2. Contents of application--Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits; a schedule of any moveable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. 5. Rejection of application--The Court shall reject an application for permission to sue as an indigent person-- (a) Where it is not framed and presented in the manner prescribed by rules 2 and 3. (b) Where the applicant is not an indigent person. (c) Where he has, within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person: Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person. (d) Where his allegations do not show a cause of action. (e) Where he has entered into any agreement; with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter. (d) Where his allegations do not show a cause of action. (e) Where he has entered into any agreement; with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter. (f) Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force. (g) Where any other person has entered into an agreement with him to finance the litigation. (a) Order 33, Rule 1 provides for institution of suit in forma pauperis. As per Order 33 Rule1, a person is an indigent 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 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. (b) The provision as contained in Order 33, Rule 1 enables a party who is not possessed of sufficient means to pay Court Fee to institute the suit without payment of Court Fee. In order to obtain an order of exemption, party has to disclose in the schedule, of all the movable and immovable properties belonging to him. Such schedule shall be signed and verified in the manner prescribed for signing and verification of pleadings. The statute also made provision for considering the application including the inquiry with respect to indigent status of the plaintiff. (c) The benefit given to litigant to dispose with payment of Court Fee was not a permanent measure. In case such indigent plaintiff succeeds in the suit. Court shall calculate the amount of Court Fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person and such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit. Order 33, Rule 11, CPC provides for the contingency in the event of the indigent person fails in the suit. Order 33, Rule 11, CPC provides for the contingency in the event of the indigent person fails in the suit. (d) Proceedings initiated by a plaintiff under Order 33, Rule 1, CPC would be decided on the basis of pleadings. Order 33 Rule 2 provides for disclosing the entire movable and immovable properties of the plaintiff along with its estimated value. The plaintiff is also to sign and verify the pleadings. The intention of disclosing the entire property of the plaintiff in a suit was to decide the matter on the basis of such relevant materials. The Court was also expected to issue notice to the Collector, as ultimately, State is the sufferer. Therefore, the Collector also plays a predominant role in the matter of deciding an application for exemption from payment of Court Fee. 7. In a decision reported in Chellamal vs. Muthulakshmi Ammal, AIR 1945 Madras 296 it was held that failure to disclose the property in the schedule would entail dismissal of the application filed under Order 33 Rule 1 CPC. Considering the nature of proceeding, it was observed as under: Under Order 33 Rule 2 read with Order 33 Rule 5(a) and Order 44 Rule 2, it is bounded duty of petitioner applying for leave to sue or appeal as a pauper to make a full and accurate verified statement of his or her properties. The utmost good faith is required of the plaintiff in the matter of discharge of his or her assets and any intentional departure from good faith, whatever motive may be must result in dismissal of the petition. 8. In a decision reported in Mathai M. Paikeday vs. C.K. Anthony, AIR 2011 SC 3221 the Supreme Court while considering the Explanation 1 to Rule 1 of Order 33 of CPC held as under: 18. To sum up, the indigent person, in terms of Explanation 1 to Rule 1 of Order 33 of the Code of Civil Procedure, is one who is either not possessed of sufficient means to pay court-fee when such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court-fee is not prescribed. In both the cases, the property exempted from the attachment in execution of a decree and the subject-matter of the suit shall not be taken into account to calculate financial worth or ability of such indigent person. In both the cases, the property exempted from the attachment in execution of a decree and the subject-matter of the suit shall not be taken into account to calculate financial worth or ability of such indigent person. Moreover, the factors such as person's employment, status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets, and person's total indebtedness and financial assistance received from the family member or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court-fee. Therefore, the expression "sufficient means" in Order 33, Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court-fee. 9. The expression not possessed of sufficient means mentioned in Explanation 1 to Rule 1 of Order 33 CPC while defining the word "indigent person" refers to plaintiff's capacity to pay the court fee prescribed by law for a plaint in such a suit. The "possession of sufficient means" refers to possession of sufficient realizable property, which will enable the plaintiff to pay the Court Fees on plaint. If property in possession is not sufficient enough to raise money to pay the requisite Court Fees, he or she should not be deemed to be possessing sufficient means to pay the Court Fees, on the other hand if the appellant is in possession of property sufficient enough to enable to raise amount for payment of Court Fees, he or she can be deemed to have sufficient means to pay the Court Fees and he or she would be considered to be an "indigent person." 10. Thus on applying the applicable statutory provisions and the principles laid down by the Supreme Court and Madras High Court in aforesaid cases, it emerges that: (i) The plaintiff/appellant omitted to mention the land owned by him in Rautpara, Jagdalpur, bearing nazul sheet No. 48, plot No. 64/6, area 1050 square feet, the market value of which was Rs. 75,600/- in the year 1999. (ii) The plaintiff/appellant is in possession of a land worth Rs. 75,600/- (as per the valuation in the year 1999) and such property is sufficient enough to raise money to pay the requisite Court fees. 75,600/- in the year 1999. (ii) The plaintiff/appellant is in possession of a land worth Rs. 75,600/- (as per the valuation in the year 1999) and such property is sufficient enough to raise money to pay the requisite Court fees. Thus, I hold that the appellant/plaintiff has suppressed the material fact of property held by him in the application under Order 33 Rule 1 & 2 CPC and taking into account that property, the appellant/plaintiff is possessed of sufficient means to pay the requisite Court Fees in the plaint. I don't find any illegally in the order of the trial Court, warranting interference in exercise of the appellate jurisdiction. Consequently, the appeal deserves to be and accordingly dismissed. No order as to costs.