Chayamani Tripathy and Another vs Dharmananda Panda

S.C. Mohapatra, J.—Both plaintiffs are appellants in this appeal under Order 43 Rule 1 (na) Civil P.C. against order refusing permission to them to sue as indigent persons.

Indigency is personal economic condition. Therefore, in case more than one person intend to sue as indigent persons, indigency of all persons together is to be considered. Even though one of them would be indigent or both individually would be indigent but the means possessed by them together would be sufficient to pay the court-fee payable, permission ought not to be granted. Since indigency is personal, legal representatives cannot take advantage of the indigency of their predecessor in interest who died applying for permission or continued the suit after being permitted. See 1973 (2) C. W. Rule 1792 Smt. Annapurna Das v. Manoranjan Rath 1987 (I) OLR 313 Bauli Sahu v. Bidyadhar Satpathy. Similarly sufficiency of means; who are to conduct the suit on behalf of plaintiff like guardian, husband, mother or father or are interested in the result of the suit would not be ground to refuse or withdraw permission where plaintiff is indigent. Bhubaneswar Misra and Others Vs. Sakuntala Devi and Others, , Hara Satnami Vs. Dhaneswar Putel and Another, and (1987) II O. L. R. 545 Santosh Samal v. Baja Achilu.

While enabling a person to sue as indigent person under Order 33 Rule 1 C. P. C. in Explanation meaning of indigent person has been explained. Portion material for this case reads as follows:--

"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 plaint in such suit, or."

Term ''not possessed of sufficient means'' to enable him to pay the fee prescribed is the requirement for permission to sue as indigent person. A person desiring to take the privilege has to make an application to Court for permission. Rule 2 provides for the contents of such application. It is provided that the application is to be annexed with a schedule of any movable or immovable property belonging to the applicant. Order 33 Rule 5 C.P.C. (a) and (b) provides that an application is to be rejected in case the same is not framed as provided in Rule 2 or where the applicant is not an indigent person. Therefore, Court considering the application filed is to consider whether the application is framed as required under Rule 2 and in case it is so framed whether the applicant is an indigent person as provided in Explanation X of Rule 1.

Even where permission has been granted, it can be withdrawn as provided in Rule 9. One of the grounds for withdrawal is where it appears that means of the person permitted are such that he ought not to continue to sue as an indigent person.

Defendant has a right to raise objection to the application or where permission has been granted to challenge the same and also to apply for withdrawal of permission as provided in Rule 9. Such right has been recognised in Shri M.L. Sethi Vs. Shri R.P. Kapur, , 1977 CWR 612 : AIR 1977 NOC 376, (Harekrushna Samantaray v. Tara Dibya and59 (1985) CLT 185 Benudhar Jena v. Prabir Chandra Masumdar.

Although previous to amendment of Civil P.C., by Act 104 of 1976 subject matter of the suit could have been taken into consideration in certain circumstances to find out whether applicant has means to enable him to pay the fee prescribed, after amendment there is no scope for the same. However, for determining the means of the applicant same standard as applied previously in case of subject matter of the suit would be applicable to other properties not subject matter.

In the aforesaid background, where an application for permission has been filed, court is to examine if the same is framed as required under Rule 2. It is true that the application is to contain the particulars required in regard to plaints. At times without following the same a plaint is attached to the application. They being substantial compliance of the requirement, application ought not to be rejected on this ground. Similarly, where movable and immovable properties are not annexed in a schedule to the application, but are described in the body of the application, such application is not to be rejected if the same is intelligible. Where the Court feels either on objection of defendant or otherwise that it is not intelligible, for reasons to be recorded in writing how it is not intelligible, it ought to direct applicant to annex the same in a schedule. In case, applicant does not comply with the order, Court has power to reject the application under Rule 5.

Once the Court is satisfied that application satisfies the requirements of Rule 2, it is to consider whether the applicant is an indigent person as explained in Rule 1. For this purpose it is to consider whether applicant is possessed of sufficient means. When the application is required to contain a schedule of the movable or immovable property belonging to the applicant, both the terms ''belonging'' and ''possessed of'' are to be given their meanings. For this purpose meaning of the term belonging has been considered in a decision reported in Lakhyeswar Karmi and Others Vs. Padmabati Karmi and Others, and 1972 (1) CWR 525 Bimhadhar Sahu v. Sankar Swain, where it was held that ''belonging'' would have the broad meaning of ownership of the property. ''Possessed of'' has been clarified not to mean actual possession. Though in respect of subject matter of dispute was considered in Mala Devi Vs. Priyamoni Devi, and in view of change of law the decision lost its force, interpretation of the term ''possess'' in the said decision still holds the field. Observation of the Division Bench may be usefully quoted which reads as follows at page 88:--

"Possess'' does not necessarily mean mere physical possession. If a person has dominion or control over property which he can easily reach such as shares or cash in a Bank, it cannot certainly be said that he is not ''possessed'' of it. But where a person merely lays claim to the possession of certain immovable property and his right to such property remains inchoate such as a right to a chose in action it would be preposterous to suggest that he is ''possessed of means to enable him to pay court-fee. ''Possessed of sufficient means would indicate remaining in actual possession of pecuniary resources, either in money or in securities which could be easily converted into money so as to enable him to pay the court-fee. Accordingly, it includes such cases as possession of cash or readily encashable securities, but it does not include for instance the hypothetical ability of the applicant to convert a claim to immovable property into money by finding a prospective purchaser by hypothecating it or otherwise. In the latter cases the Court is bound to consider whether having regard to the claim made and the nature of the interest claimed, the applicant could have raised money on the security of property which itself is the subject matter of the suit. There may be cases where a claim to immovable property is so obvious that anybody could lend money on the security of such property. There may also be cases where the property, however, valuable, may not fetch a purchaser or a creditor, because it may prove risky to invest money on the property before the right is finally decided. The Court is, therefore, bound to take into consideration all these circumstances and see whether, on the facts of the particular case, the plaintiff can be held capable of paying court-fee on his plaint, on the basis of the property in suit. It is not mere ability in the abstract but the ability to raise money in the circumstances of the particular case in order to meet the requisite fee, that will be taken into consideration, in determining whether the plaintiff is ''possessed of sufficient means''."

Therefore, applicant is to specify all the properties belonging to him in the schedule so that after the stage of objection Court can consider from the materials whether the applicant can be said to be possessed of sufficient means.

Plain language of Rule 5 leaves no room for doubt that non-compliance of requirement of Rule 2 entails rejection of the application as provided in Rule 5. This has been decided in ILR 1966 Cut 80 Maheswar Misra v. Hindusthan Steel Ltd. However, in a benevolent provision to enable a person to sue as an indigent person as expressed in Dillip Kumar Sahu Vs. State and Others, Courts should take a liberal attitude. Before taking drastic action of rejection of the application, it should give opportunity to the applicant. In ILR 1949 Cut 578, Anangabhusan Samanta Singhar Moharatra v. Ghanashyam Patro, even while considering R. 9 it was observed:--

"Some omission of certain properties from the inventory submitted by plaintiff will not necessarily amount to active concealment and thus to vexatious and improper conduct in course of the suit. Whether it is a concealment as distinguished from mere omission is a question of fact....."

In ILR 1966 Cut 80 (supra), Court gave opportunity to include the provident fund of the applicant and explain how the same is not means sufficient to enable him to pay the fee prescribed.

Where after all considerations, Court is not able to assist a person to permit him to sue as indigent person it should give him chance to pay the court-fee as held in 71 (1991) CLT 3 Arjun Nayak v. Smt. Malati Das by taking into consideration the effect of Rule 16-A. But unnecessary adjournments should not be granted too liberally to satisfy the principle of natural justice, Court should remember the public policy of early finality and apply the principle of natural justice as would be required on the facts of the case. Adjournments should not be mechanical in nature.

Applying the aforesaid principles, I find that trial court has come to conclusion that some properties belonging to the applicants have been left out. Applicants should get opportunity to include the same and explain how those properties cannot be considered for determination of sufficient means. In case, defendant offers to purchase the whole or part of the excluded property for a consideration which would be more than the fee payable, trial court shall consider the same as has been observed in Nemai Charan Das Vs. Sk. Makbul and Others, . If applicants satisfy the Court that they can get advantage of Section 18A of the Court-fees Act by bringing materials to record in accordance with law, the same shall be considered by the trial court in case the application for permission is rejected. In view of legal aid available to plaintiffs who are ladies and equal opportunity may also be given to the applicants to take such assistance in case law permits.

With the aforesaid direction, impugn ed order is set aside. Appeal is allowed. Both parties are directed to appear before the trial court on 27th July, 1992, on which day trial court shall proceed in accordance with law, No costs.