ORDER : ON I.A. No. 1/2017 1. This application is filed by the appellant under Order XLIV Rule 1, read with section 151 of the Code of Civil Procedure (for short ‘CPC’) seeking permission to institute the appeal as an indigent person. According to the appellant, he does not own any property except the movable properties mentioned in the schedule attached with the application. The movables mentioned in the schedule are only clothes and personal effects and are valued at Rs. 3,500/- by the appellant. 2. The appellant filed an application under Order XXXIII Rule 1 of CPC seeking permission to sue as a forma pauperis, for specific performance of agreement of sale deed 1.4.1997 executed and registered in his favour for conveyance of title to 21 residential plots described in the application schedule. The appellant asserted that he had paid the entire sale price for such residential plots. The appellant annexed a Valuation Slip to the application according to which the appellant was required to pay a court fee of Rs. 2,15,580/- on the plaint. The application was registered as P. Miscellaneous No. 10/2004. The notice of such application was caused to the respondent No. 1, who resisted the appellant's prayer for permission to prosecute the suit as forma pauperis. However, during the enquiry on the appellant's prayer to prosecute the claim as forma pauperis, the respondent No. 1 filed IA V under order XXXIII Rule 5(e), read with Section 151 of CPC seeking permission to deposit the court fee of Rs. 2,15,580/- on behalf of the appellant. 3. In support of this application in IA V, the respondent No. 1 contended inter alia that the transaction vide the agreement of sale dated 1.4.1997 was a money transaction, and not a sale transaction. In fact, the respondent No. 1 was willing to pay the amount due to the appellant. The respondent No. 1 further contended that the appellant was not entitled to prosecute the suit as forma pauperis. But, the delay in adjudicating on the appellant's claim to sue as forma pauperis was adversely affecting the respondent No. 1. Therefore, the respondent No. 1 was constrained to seek permission to pay the court fee of Rs. 2,15,580/- on behalf of the appellant. The appellant resisted this application by the respondent No. 1. 4. But, the delay in adjudicating on the appellant's claim to sue as forma pauperis was adversely affecting the respondent No. 1. Therefore, the respondent No. 1 was constrained to seek permission to pay the court fee of Rs. 2,15,580/- on behalf of the appellant. The appellant resisted this application by the respondent No. 1. 4. The learned Civil Court by its Order dated 4.9.2006 allowed the application in IA V permitting the respondent No. 1 to pay the court fee of Rs. 2,15,580/- (which ought to have been paid by the appellant) subject to the condition that the amount shall be accounted and adjusted at the final disposal of the case. The respondent No. 1 paid the court fee of Rs. 2,15,580/- on 7.9.2006. After the trial, the learned Civil Court by the impugned judgment and decree dated 31.1.2017 partly decreed the appellant's suit rejecting the claim for specific performance, but declaring that the appellant was entitled for a refund of a sum of Rs. 48,95,000/- along with interest at the rate of 8% per annum from the date of the suit till the date of realisation of the entire amount. However, the learned Civil Court did not order for any accounting or adjustment. 5. The appellant has filed this appeal impugning the judgment and decree dated 31.1.2017. As stated above, the appellant, along with the appeal memorandum, has filed IA No. 1/2017. In the affidavit filed in support of this application, he has asserted that as of the date of the institution of the suit, the appellant had only Rs. 475/- in his account with South Indian Bank, Bangalore. He was permitted to prosecute the suit as an indigent person; accordingly, he did not pay any court fee. The appellant, as of the date of the presentation of the appeal, does not even hold such account with South Indian Bank; the only assets he possesses are as mentioned in the Schedule to the application. Therefore, the appellant continues to be an indigent person. 6. This Court while issuing notice to the respondents on IA No. 1/2017, issued notice of this application to the State of Karnataka to be served through the Deputy Commissioner, Bengaluru with directions to the Deputy Commissioner to verify the appellant's properties through the local officer of the rank of Tahsildar to ascertain whether the appellant possessed property worth more than Rs. 3,500/-. 3,500/-. In compliance with such direction, a report was filed by an officer below the rank of Tahsildar based on the local enquiries conducted by him. This Court opined that in the facts and circumstances of the case it would be appropriate if the enquiry were undertaken by the Tahsildar himself. Therefore, on 18.9.2017, the necessary directions were issued in this regard. The Tahsildar filed his Report on 30.10.2017. On 22.11.2017, this Court directed the Registrar (Judicial) of this Court to conduct an enquiry, and to record necessary finding as regards the appellant's claim of indigence. 7. The Registrar (Judicial) has filed Report dated 9.7.2018 after holding an enquiry. The Registrar (Judicial), for the reasons stated in the Report dated 9.7.2018, has opined that the appellant cannot claim to be a person without means to pay the requisite court fee on the appeal. The appellant has filed objections to this Report dated 9.7.2018. Further, the learned counsel for the appellant has filed Written Submissions in support of the application, and against the Report dated 9.7.2019 filed by the Registrar (Judicial). 8. The learned counsel for the appellant has made the following submissions in support of the application in IA No. 1/2017; firstly, the learned Civil Court's Order dated 4.9.2006 allowing IA V filed by the respondent No. 1 is an order permitting the appellant to prosecute the suit as an indigent person. Therefore, the appellant has not paid court fee on the plaint. This order dated 4.9.2006 is a judgment that has attained finality and as such, the order dated 4.9.2006 cannot be reviewed in this appeal while considering I.A. No. 1/2017. 9. Secondly, the provisions of Order XXXIII of CPC contemplate recovery of court fee payable only when a plaintiff, who is permitted to sue as an indigent person, either succeeds entirely or fails completely in the suit. The provisions of Order XXXIII, Rule 10 of CPC apply when a plaintiff succeeds entirely in the suit; the provisions of Order XXXIII, Rule 11 of CPC (including the substituted rule 11 in so far as the State of Karnataka) apply when a plaintiff fails completely in the suit. But, there is no provision under Order XXXIII of CPC for recovery of court fee payable when a plaintiff succeeds partially i.e. when the suit is decreed partly. But, there is no provision under Order XXXIII of CPC for recovery of court fee payable when a plaintiff succeeds partially i.e. when the suit is decreed partly. The Hon'ble Supreme Court in R.V. Dev vs. Government of Kerala, (2007) 5 SCC 698 has reiterated this proposition. As such, the learned Civil Court, while partly decreeing the suit, has not issued any direction either to the appellant or the respondent No. 1 to pay the court fee. 10. Thirdly, the payment of Rs. 2,15,580/- made by the respondent No. 1 on 7.9.2016 after the orders by the learned Civil Court on I.A. V is payment towards the court fee payable on the counter-claim. Out of the sum of Rs. 2,15,580/- a sum of Rs. 1,08,000/- is adjusted towards the court fee payable by the respondent No. 1 on the counter-claim. As such, the respondent No. 1 has not paid the court fee payable on the plaint, but misleading statements are made in this regard. 11. Fourthly, none of the properties referred to in the Tahasildar's Report dated 30.10.2017 stand in the name of the appellant. It is erroneously concluded by the Tahasildar and the Registrar (Judicial) that the appellant owns an ancestral residential property situated in the prime locality of V.V. Puram, Basavanagudi, Bangalore City which is worth more than Rs. 2 crores. The fact that the appellant's only son, who has completed medical education abroad, is practicing in Bangalore is of no significance because the appellant and his only son are estranged, and appellant does not receive any financial assistance from the son. In fact, the appellant's son is arrayed as a defendant even in this appeal. Nevertheless, the Registrar (Judicial) has considered the appellant's son's financial capabilities. 12. Fifthly, the authorities in their respective Reports have referred to a commercial shop purportedly purchased in the name of the appellant's son, who was a minor at the relevant point of time. They have also referred to certain vehicles as belonging to the appellant because they were purportedly found at the precincts of the appellant's residence at the time of the local enquiry. But, the authorities have not filed any documents to establish appellant's ownership of the said commercial shop. They have also referred to certain vehicles as belonging to the appellant because they were purportedly found at the precincts of the appellant's residence at the time of the local enquiry. But, the authorities have not filed any documents to establish appellant's ownership of the said commercial shop. In so far as the vehicles purportedly found at the precincts of the appellant's residence as per the Tahsildar’s Report, the registration certificate demonstrates that the appellant did not own such vehicles. 13. Lastly, the appellant, who was an indigent person as of the date of institution of the suit and who is permitted to prosecute the suit as an indigent person, has not ceased to be an indigent person. The appellant only owns movable properties as listed in the schedule to the application. The enquiry on the present application should be confined to verification of any change in the appellant's financial inability/incapacity for the period between the date of the impugned judgment and the date of filing of the appeal. As such, the facts and circumstances mentioned by the Authorities, and relied upon by the Registrar (Judicial), which relate to a period of time prior to the institution of the suit, would not be relevant. 14. The learned Additional Government Advocate and the Counsel for the respondent No. 1 have resisted the application filed by the appellant contending that the appellant cannot plead indigence because the appellant resides along with his son who is a medical practitioner. The Hon'ble Supreme Court in Mathai M. Paikeday vs. C.K. Anthony, (2011) 13 SCC 174 has held that a person who receives financial assistance from a relative would not be entitled to claim to be an indigent person. The statement that the respondent No. 1 has paid court fee only towards the counter-claim and not on the plaint which was required to be paid by the appellant is factually incorrect. The appellant has taken liberties with facts. Even the appellant's evidence before the learned Civil Court establishes that he has multiple accounts with different banks. As such, the appellant is not entitled to claim indigence or deferment in payment of court fee. 15. The appellant has taken liberties with facts. Even the appellant's evidence before the learned Civil Court establishes that he has multiple accounts with different banks. As such, the appellant is not entitled to claim indigence or deferment in payment of court fee. 15. An application for permission to sue as an indigent person is permissible under Order XXXIII of CPC which inter alia prescribes the requisite contents of such application, manner of presentation of such application, the nature of enquiry on such application, and rejection of such application even before notice of such application is issued to the opposite party. Further, the provisions of Order XXXIII of CPC provide that the applicant may adduce evidence in proof of his indigence, and for hearing on such evidence after a clear 10 days notice to the opposite party and the Government Pleader. The provisions of Order XXXIII of CPC also stipulate that the Court shall hear any argument that may be advanced as regards the indigence asserted. Thereafter, the Court may either allow or refuse to allow the applicant to sue as an indigent person. Furthermore, the provisions of Order XXXIII of CPC provide the procedure to be followed if the application for permission to sue as an indigent person is admitted, including the procedure for recovery of the court fee payable on the final adjudication of the suit, and withdrawal of the permission to sue as an indigent person during the pendency of the suit. 16. As such, generally, an application to sue as an indigent person is decided on evidence before the suit is taken up for final adjudication. However, in the present case, though an enquiry was commenced on the appellant's application for permission to sue as an indigent person, the enquiry was truncated because the learned Civil Court allowed the application (IA.V) filed by the opposite party/respondent No. 1 seeking permission to pay the court fee which was required to be paid by the appellant on the plaint. The operative part of the learned Civil Court's Order dated 4.9.2006 reads as under: “IA. V filed by the applicant/respondent under Order XXXIII Rule 5 (e) r/w section 151 of CPC is hereby disposed of and the applicant of IA V herein and the respondent of the main petition is permitted to pay court fee of Rs. The operative part of the learned Civil Court's Order dated 4.9.2006 reads as under: “IA. V filed by the applicant/respondent under Order XXXIII Rule 5 (e) r/w section 151 of CPC is hereby disposed of and the applicant of IA V herein and the respondent of the main petition is permitted to pay court fee of Rs. 2,15,580/- payable by the petitioner and the said amount shall be accounted and adjusted in the final disposal of the case” The subsequent order sheet dated 7.9.2006 reads as follows: “Shri KVR Adv files IA XII u/s 151 of CPC for extending IO. Shri MRP Adv files memo with DD for Rs. 2,15,580/- towards court fee payable by petitioner/plaintiff and being paid by respondent No. 1. Perused the records IO is extended till next date. Register the suit and put upon 11/9.” 17. It is canvassed on behalf the learned counsel for the appellant that the respondent No. 1 has paid the amount of Rs. 2,15,580/- towards the court fee payable on the counter-claim, and a sum of Rs. 1,08,000/- from out of Rs. 2,15,580/- is adjusted in the decree. But, the judgment and the decree are silent about any such adjustment. The decree only records under the title "Costs of the Suit" that the respondent no. 1 has paid court fee of Rs. 1,08,000/- on the plaint. However, from the Orders dated 4.9.2006 and 7.9.2006, it is established that the respondent No. 1 has paid Rs. 2,15,580/- towards the court fee on the plaint which was required to be paid by the appellant. 18. It is not obvious from the available records that the respondent No. 1 has paid a separate sum of Rs. 1,08,000/- as court fee payable on its counter - claim. The learned Civil Court, after ascertaining whether a sum of Rs. 1,08,000/- is paid or not by the respondent No. 1, should have passed necessary orders for payment of this amount of Rs. 1,08,000/-. But, the learned Civil Court has not passed any order in this regard in the impugned judgment. If the respondent No. 1 has failed, or fails, to pay Rs. 1,08,000/- necessary proceedings as provided in law for recovery thereof must be initiated. But, the appellant cannot contend that he was permitted to prosecute the suit as an indigent person or that the respondent No. 1 has only tendered Rs. If the respondent No. 1 has failed, or fails, to pay Rs. 1,08,000/- necessary proceedings as provided in law for recovery thereof must be initiated. But, the appellant cannot contend that he was permitted to prosecute the suit as an indigent person or that the respondent No. 1 has only tendered Rs. 2,15,580/- towards the court fee payable on the counter-claim which is adjusted at the time of drawing the decree. 19. In fact, a conjoint reading of the Order dated 4.9.2006 and 7.9.2006 indisputably establish that enquiry into the appellant's application for permission to sue as an indigent person did not culminate in an order under Rule 5 of Order XXXIII of CPC and later registration of the application as a suit as required under Rule 8 of Order XXXIII of CPC. Such conjoint reading only indisputably establish that the respondent No. 1 paid Rs. 2,15,580/- as court fee payable on the plaint which was payable by the appellant. 20. Further, since the appellant's claim to sue as an indigent person was not adjudicated upon by the learned Civil Court, the appellant cannot contend that the enquiry on the present application in this appeal should be confined to ascertain whether there has been any change in the financial status of the appellant during the period between the date of the impugned judgment and the date of presentation of the appeal. In the peculiar circumstances of the case, this Court is not even called upon to consider the tenability of such argument. It would therefore suffice to say that an enquiry and an adjudication, on the appellant's indigence is necessary to either allow or refuse to allow the appellant to prosecute the appeal as an indigent person. 21. The Hon'ble Supreme Court in Mathai M. Paikeday (supra) by extracting from American Jurisprudence (20 Am Jur 2d Costs $100) has declared that 'the burden of establishing indigence is on the defendant claiming indigent status, who must demonstrate not only that he/she is entirely destitute and without funds, but that payments for Counsel would place an undue hardship on his or her ability to provide the basic necessities of life for himself or herself and his or her family'. The Hon'ble Supreme Court has also declared that different factors such as a person's employment status and total income including retirement benefits in the form of pension, ownership of realisable unencumbered assets, and person's total indebtedness and financial assistance received from the family members or close friends can be taken into account in order to determine whether a person is possessed of sufficient means are indigent to pay court fee. Therefore, the expression “sufficient means” in order 33 Rule 1 of the Code of Civil Procedure contemplates the ability and capacity of a person in the ordinary course to raise money by available lawful means to pay court fee. 22. Further, the provisions of Order XXXIII of CPC and Order XLIV of the CPC are intended to ensure that a person, who is ridden by poverty or is not possessed of sufficient means to pay court fee, is not denied access to justice because of such poverty or financial constraints. The obligation to pay court fee is deferred until such time as it would be within the means of such person to pay the requisite court fee. The concession under Order XXXIII of CPC cannot be extended to those who have the necessary financial wherewithal to pay the required court fee, but will find it convenient to avoid such payment. Therefore, the person seeking permission to sue as an indigent person must not only discharge the burden of establishing his/her impoverishment and/or financial inability or incapacity because of lack of resources, but must plead every such circumstance as would justify the claim of indigence. 23. Therefore, the questions are whether the appellant has placed all the essential circumstances without any suppression, or not? And whether these circumstances establish that he has no financial ability or capacity to raise money in the ordinary course from the available lawful means to pay the requisite court fee, or not? 24. Undisputedly, the appellant and his wife reside in the ground floor premises in a residential property situated in V.V. Puram, Basavanagudi, Bangalore, while their only son, a medical practitioner, who has completed his medical education abroad, resides in the 1st floor premises of this property. It is also undisputed that the appellant and his wife have been residing in this property with different amenities, furniture and fixtures for over three to four decades in this property. Further, the appellant's Son - Dr. It is also undisputed that the appellant and his wife have been residing in this property with different amenities, furniture and fixtures for over three to four decades in this property. Further, the appellant's Son - Dr. Ram Raj - the defendant No. 4 in the suit - is examined as DW-2 in the suit. The learned Civil Court, in paragraph 15 of the impugned judgment while adverting to the evidence of DW-2, has recorded that that the appellant's son has deposed that the appellant has invested joint family funds to purchase the suit properties under the registered agreements of sale and because the appellant's son is also a member of such joint family, he has every right in the suit schedule properties. Furthermore, the appellant has asserted that he has no assets except the movables mentioned in the Schedule to the application, but has not explained his ostensible source of livelihood. These circumstances establish continued sharing of residential property, and subsisting common interest between the appellant and his only son, who is a medical practitioner in Bengaluru after completing his studies abroad. 25. The appellant attempts to explain that he does not have any right in the aforesaid residential property asserting that this residential property and the other properties were owned by the appellant, his parents and siblings. But, in a partition affected in the year 1970, the appellant received a sum of Rs. 2,760/- in lieu of his shares in all the common properties. However, it is undisputed that aforesaid residential property was allotted in such family partition to the appellant's mother, who in turn bequeathed the property to the appellant's only son. These circumstances coupled with the other facts discussed above, including the fact that the appellant and his wife continue to reside in the same property, could only underline that the appellant and his family members, for reasons of convenience, could have dealt with their properties without intending to sever or disrupt inter se assistance or dependence. 26. Further, it is admitted by the appellant, in the cross-examination during the enquiry before the Registrar (Judicial) that a commercial shop property - a photograph of which property is confronted to the appellant - was purchased in the year 1987 when the appellant's son was only aged 6 years. 26. Further, it is admitted by the appellant, in the cross-examination during the enquiry before the Registrar (Judicial) that a commercial shop property - a photograph of which property is confronted to the appellant - was purchased in the year 1987 when the appellant's son was only aged 6 years. However, the appellant contends that this property was purchased under the sale deed dated 7.8.1987 in the name of his son, who was a minor, represented by his mother (appellant's wife) and that this property is in the occupation of a tenant. The appellant is silent about what is the arrangement in so far as this property between himself/ his wife and his son and why this asset is not an unrealizable asset. This further strengthens the existence of common interests and mutual interdependence and assistance between the appellant and his family members. It further proves the reluctance to place all material on record by the appellant. 27. Crucially, the aforementioned circumstances viz. continued sharing of residential property, subsisting common interests and undeniable interdependence and assistance indicate that the appellant with the assistance of his son, who is a medical practitioner would have the necessary financial ability or capacity to raise money in the ordinary course from the available lawful means to pay the requisite court fee. Further, the fact that these circumstances were not pleaded and had to be ferreted out during an enquiry constrains this Court to conclude that the appellant has not approached the Court with clean hands. In fact, an effort is made to project himself as an indigent person. 28. For the reasons discussed above, this Court is of the considered opinion that the appellant has failed to establish that he is an indigent person who should be permitted to prosecute the appeal without paying appropriate court fee. Therefore, I.A. No. 1/2017 is rejected and the appellant is granted six weeks from the date of receipt of a certified copy of this order to pay the appropriate court fee on the appeal memorandum. Therefore, I.A. No. 1/2017 is rejected and the appellant is granted six weeks from the date of receipt of a certified copy of this order to pay the appropriate court fee on the appeal memorandum. Further, the office is directed to call upon the Registrar, City Civil Court, Bangalore to ascertain whether the respondent No. 1 has paid the requisite court fee on the counter-claim and inform the Registrar, City Civil Court, Bangalore to initiate appropriate proceedings as provided for in law for recovery of the court fee payable by the respondent No. 1 on the counter-claim, if such court fee is not paid.