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2020 DIGILAW 451 (KAR)

LAKSHMIDEVAMMA K v. SHANTHA

2020-02-14

R DEVDAS

body2020
ORDER : R. DEVDAS, J. 1. By order dated 31.05.2018, this Court had directed enquiry under Order XLIV Rule 3 (2) of CPC and therefore Registrar (Judicial) was directed to hold a enquiry on the application and submit a report after recorded evidence for proceeding further. A report dated 26.10.2018 submitted by the Additional Deputy Commissioner, Bengaluru has been considered along with the examination and cross-examination of the petitioner. 2. The contention of the learned counsel for the respondents is that when it is an admitted position that the petitioner is the owner of an immovable property bearing No.62/3, 9th Cross, Wilson Garden, Bengaluru, which measures 20 x 43 feet consisting of ground + two floors, the petitioner cannot contend that she is not having sufficient means to pay the Court fee. It is contended by the learned counsel for the respondents that the petitioner is in a position to mortgage the property or portion of the property to raise funds and pay the Court fee and the petitioner can repay the loan secured by mortgaging the property out of the newly constructed second floor and in addition, the sons are well placed, even one of the daughter is also well placed and therefore the petitioner can seek funds from the sons and daughters for paying the Court fee. 3. Per contra, the learned counsel for the petitioner draws the attention of this Court to Order XXXIII Rule 1(a) of CPC and submits that a person can be considered as indigent person, if he or she is not possessed of sufficient means to enable him or her to pay the Court fee prescribed by law for the plaint in such suit, and in this case, the appeal. Learned counsel places reliance on the following judgments: (iii) Shivarudrappa and Another Vs. Chinnayallappa and Another, reported in (1992) 2 Kant LJ 429. 4. Heard the learned counsels and perused the petition papers. 5. Learned counsel places reliance on the following judgments: (iii) Shivarudrappa and Another Vs. Chinnayallappa and Another, reported in (1992) 2 Kant LJ 429. 4. Heard the learned counsels and perused the petition papers. 5. On perusing the judgments cited by the learned counsel for the petitioner, this Court finds that in the case of Mathai M. Paikeday (supra) the Hon'ble Supreme Court has considered the provisions of Order XXXIII Rule 1 and Explanation I and has summed up that an indigent person 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 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. Further, it has been held that 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 in debtness 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. 6. In the case of Smt. T. Jayamma (supra), this Court has noticed another decision in the case of Prabharakan Nair Vs. K. P. Neelakanthan Pillai, reported in AIR 1988 KERALA 267, wherein, it has been held as follows: (i) Mathai M. Paikeday Vs. C. K. Antony, reported in (2011) 13 SCC 174 , (ii) Smt. T. Jayamma Vs. Bangalore University, by its Registrar and others, reported in ILR 2000 KAR 1528 "The benefit of Order 33, CPC is conferred on persons without "sufficient means" and not without any means at all. Pauperism is not a prerequisite for the leave. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property alone is what the Court has to look into. What is intended is not capacity to raise funds by any means whatsoever by begging, borrowing or stealing or by any other hook or crook, but by normal and available lawful means. Capacity to raise money and not actual possession of property alone is what the Court has to look into. What is intended is not capacity to raise funds by any means whatsoever by begging, borrowing or stealing or by any other hook or crook, but by normal and available lawful means. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets to seek justice in penury. This itself is the object of exclusion of property exempt from attachment in execution of a decree and the subject matter of the suit from 'sufficient means'. A debt that has yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of Court fee cannot be taken into account in calculating sufficient means". While concluding, this Court held that it is the capacity to raise money and not actual possession of the property alone is the criteria. What is intended is not the capacity to raise funds by any means viz., by begging, borrowing, stealing or by hook or crook. Moreover, it was also noticed that in the case of Minor Maheshwatiben and others Vs. State of Gujarat, reported in AIR 1988 GUJARAT 68, it was held that the “sufficient means” would indicate financial condition of applicant alone is to be seen. Financial condition of guardian or other relatives is totally irrelevant. 7. In the case of Shivarudrappa (supra), this Court after examining the Order XXXIII rule 1 of CPC at paragraph No.10 has held as follows: The short question which was posed before the learned Judge was whether the legislature contemplates that while considering the available means to the plaintiff his sole means of livelihood should be included in disposable or realisable assets even though Legislature had provided the necessary safeguard of 'sufficient means' in this expression in Order 33, Rule 1. If such an interpretation was to be put on this statutory language, it would mean that a farmer who would have only a plough or the necessary implements of agriculture would have first to sell away those agricultural implements or such a milkman would have first to sell away his cattle or a lorry man would have to sell away his small lorry on which his sole livelihood depends. That would mean that the man would have first to starve himself before he is entitled to approach the Court, to file his litigation. That would frustrate the very object of this statutory enactment which enables too poor people to file their suits without payment of Court-fees in the first instance. Therefore, the available means or resources and their sufficiency would have to be judged in the light of disposable property on the facts of each case, for effectuating this purpose in question, so that even such a poor litigant is enabled to fight his litigation, without depriving him of his sole means of livelihood". 8. Having regard to the position of law as expounded by this Court as well as by the Hon'ble Supreme Court in the case of Mathai M Paikeday (supra), this Court finds that the submission of the learned counsel for the respondents that the petitioner is in a position to mortgage the property and secure loan to pay the Court fee, while the petitioner can let out the second floor on rent and repay the loan cannot be accepted. As noticed from the decisions referred above, what is necessary is that whether the petitioner posseses the means without disturbing her residence and the means for her livelihood, whether the petitioner is in a position to pay the Court fee? As noticed in the report submitted by the Additional Deputy Commissioner, Bengaluru, the property belonging to the petitioner, is occupied by the petitioner and her husband in the ground floor, the first floor is occupied by one of the sons and it is stated that the second floor has been constructed recently. Even, if it is admitted that the petitioner may let out the second floor, it is difficult to accept the contention of the learned counsel for the respondents that the petitioner can mortgage the property and raise a loan in order to pay Court fee which is to the tune of Rs.6,05,000/. 9. Moreover, in the opinion of this Court in the matter of payment of Court fee, it is the interest of the State Government and the Court that has to be protected. Payment of Court fee is meant for the Court and it is therefore trite to say that in the matter of Court fee, the interest of the other side is only to a limited extent. Payment of Court fee is meant for the Court and it is therefore trite to say that in the matter of Court fee, the interest of the other side is only to a limited extent. Ultimately, when the State Government, through the Additional Deputy Commissioner, Bengaluru, in this case, was appointed to find out about the factual aspect regarding the financial condition of the petitioner and report has been submitted by the Additional Deputy Commissioner and as per the report, it is found that the petitioner does not possess sufficient means to pay Court fee. 10. In the light of the above, the petition is allowed. The petitioner is permitted to prosecute the R.F.A.No.1639/2016 informa pauparis. It is ordered accordingly.