Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 645 (ORI)

Oriental Pigment (P) Ltd. v. O. S. F. C.

2015-11-20

AKSHAYA KUMAR RATH

body2015
JUDGMENT : Akshaya Kumar Rath, J. 1. In this petition under Article 227 of the Constitution of India, challenge is made to the order dated 6.8.2008 passed by the learned Civil Judge (Sr. Division), Berhampurin I.A. No. 50 of 2008. By the said order, the learned trial court rejected the application of the petitioner for declaring it as an indigent person and to allow it to prosecute the suit. The petitioner as plaintiff instituted a suit for passing a decree of delivery of possession of the Schedule-B property and damages amounting to Rs. 5,00,000/- impleading the opposite parties defendants in the court of the learned Civil Judge (Sr. Division), Berhampur, which was registered as C.S. No. 100 of 2008. The aforesaid suit was filed when the properties of the company had been seized by the opposite parties under Section 29 of the State Financial Corporation Act (hereinafter referred to as "the Act"), the petitioner had also filed an application under Order 33 Rule 1 C.P.C. to declare it as an indigent person and to allow it to prosecute the suit as such. In support of the claim, the Managing Director of petitioner-company was examined as P.W. 1. By order dated 6.8.2008, the learned trial court rejected the application holding inter alia that P.W.1 was maintaining the passbook of the company and did not produce the same. She could not be able to say the earlier case number. The learned trial court further held that Ext. 1 cannot be taken into consideration for declaring the petitioner company as an indigent person at present. 2. Heard Mr. Pradhan, learned Counsel for the petitioner and Mr. Routray, learned Counsel for the opposite parties 1 and 2. 3. The seminal point that hinges for consideration before this Court is as to whether the petitioner-company can be declared as an indigent person ? 4. Order 33 Rule 1 C.P.C. provides for institution of suits by indigent person, which is quoted hereunder:-- "1. Suits may be instituted by [indigent person].- 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. [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.- 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." 5. Order 33 Rule 1 of C.P.C. is an enabling provision. In the event the plaintiff succeeds in the suit, the Court would calculate the amount of court fee, which would be paid by the plaintiff. 6. What is the meaning of 'person' appearing in the Order 33 Rule 1 C.P.C. After survey of decisions of various High Courts, the apex Court in the case of Union Bank of India v. Khader International Construction and others, AIR 2001 Supreme Court 2277 held that the word 'person' has to be given its meaning in the context in which it is used. It refers to a person who is capable of filing a suit and this being a benevolent provision, it is to be given an extended meaning. It is further held that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order 33 Rule 1 C.P.C. The word 'person' mentioned in Order 33 includes not only a natural person, but other juridical persons also. 7. In Mathai M. Paikeday v. C.K. Antony, 2011 (II) OLR (SC) 502, the apex Court had the occasion to consider the case of eligibility of a person to sue in forma pauperis. Paragraph-18 of the said report is quoted hereunder:-- "18. 7. In Mathai M. Paikeday v. C.K. Antony, 2011 (II) OLR (SC) 502, the apex Court had the occasion to consider the case of eligibility of a person to sue in forma pauperis. Paragraph-18 of the said report is quoted hereunder:-- "18. To sum up, the indigent person, in terms of explanation I 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. 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." 8. On the anvil of the decisions cited supra, the case of the petitioner may be examined. In the application filed under Order 33 Rule 1 C.P.C., it is stated that the Managing Director of the Company (though mentioned as firm in the petition) had incurred loan from the opposite parties. The factory could not be established since the sanctioned amount-was not released. Thereafter the opposite parties in exercise of power under Section 29 of the Act put the property to auction. The plaintiff had no other property except the properties described in the petition. The plaintiff had not possessed of sufficient means enabling it to pay the court fees. Further the plaintiff was declared as an indigent person by the same court in MJC No. 51 of 1998. The Managing Director of the petitioner-company was examined as P.W. 1 in support of the case. The plaintiff had not possessed of sufficient means enabling it to pay the court fees. Further the plaintiff was declared as an indigent person by the same court in MJC No. 51 of 1998. The Managing Director of the petitioner-company was examined as P.W. 1 in support of the case. P.W. I has stated that by order dated 19.3.1999 the company was declared as an indigent person in M.J.C. No. 51 of 1998. After being declared as indigent person, the company has neither purchased, nor sold any property. The company has no other property except moveable property mentioned in the petition amounting to Rs. 330/-. Though P.W.1 was subjected to extensive cross-examination, but nothing was elucidated from her. 9. In view of the impeccable evidence on record, the inescapable conclusion is that the petitioner-company is an indigent person. Accordingly, the order dated 6.8.2008 passed by the learned Civil Judge (Sr. Division), Berhampur in I.A. No. 50 of 2008 is quashed. The petitioner-company is allowed to prosecute the lis in forma pauperis. Accordingly, the petition is allowed. Petition Allowed