Darshan Singh vs Ashupam Kaur

M. Jeyapaul, J.—A totally erroneous order passed by the trial Court has been rightly put to challenge by the aggrieved defendant. The plaintiff who is a respondent herein laid a suit praying for recovery of a sum of Rs. 50 lacs as damages from the defendant who is the revision petitioner herein without paying Court Fee, having sought for a prayer that she should be declared as an indigent person incapable of paying the Court Fee.

The plaintiff has contended that she had not owned any immoveable or moveable property in her name and that, therefore, she should be declared as a pauper, incapable of paying the required Court Fee.

The said plea of the plaintiff was contested by the defendant that she possessed immoveable and moveable properties. That apart, she possessed cash amount and bank balance. It was also contended by the defendant that he paid a hefty sum of Rs. 25 lacs as maintenance not only to the mother of the plaintiff, but also to the plaintiff herself, just 2 years prior to the laying of the present suit. Contending that she was working as a teacher in a private school at Malerkotla and that she was having wherewithal to pay the Court Fee, the defendant sought for rejection of the prayer to declare her as indigent person, incapable of paying the Court Fee.

The trial Court having adverted to the oral evidence of the plaintiff and the sale deed dated 27.1.2010 and the copy of the judgement of this Court dated 10.9.2007 exhibited as Exs. R-1 and R-2 respectively on the side of the defendant, simply allowed the prayer to declare the plaintiff as an indigent person. While allowing such a prayer, the trial Court also chose to make an observation without actually going into the documents Exs. R-1 and R-2 which were exhibited before it that the plaintiff did not own any immoveable or moveable property in her name. To substantiate its stand the trial Court also drew inspiration from the report submitted by the Collector to the effect that the plaintiff did not own any immoveable or moveable property.

Learned senior counsel appearing for the revision petitioner would vehemently submit that the trial Court has infact passed a perverse order without actually adverting to Exs. R-1 and R-2 which would go to establish that the plaintiff had wherewithal to pay the Court Fee. Referring to Order 33 Rule 1 of the CPC, he would also submit that the defendant could establish that before ever the prayer for declaring the plaintiff as indigent person was tested by the trial Court, the plaintiff had alienated an immoveable property in her name for a sum of Rs. 9,25,000/-. Inasmuch, as the plaintiff has chosen to suppress the very fact that she possessed immoveable and moveable property and had alienated an immoveable property even during the pendency of the application to declare her as indigent person, she was not entitled to be declared as indigent person, he would further submit.

Learned counsel appearing for the respondent would submit that the trial Court having been guided by the report submitted by the Collector and also by the fact that the defendant had not let-in any oral evidence passed the order declaring the plaintiff as indigent person.

To say the least, the order under challenge is totally perverse. Exhibits R-1 and R-2 had been exhibited before the trial Court, but the trial Court had not cared to even advert to those two documents. Had the trial Court gone into those documents, the trial Court would not have passed such an order forcing the defendant to come before this Court by way of revision. On a careful perusal of Exs. R-1 and R-2, the defendant has demonstrated that the plaintiff did own immoveable property in her name and she alienated the same for Rs. 9,25,000/- after the suit was filed but before ever her prayer for declaring her as indigent person was disposed of. Firstly, the plaintiff has suppressed the very fact that she owned immoveable property even at the time when she filed the suit. Secondly, she had the courage to dispose of the property even before the disposal of the said application for a whopping sum of Rs. 9,25,000/-, whereas as per her own version she was to pay only a sum of Rs. 51,236/- as Court Fee.

Of course, learned counsel appearing for the plaintiff would submit that the plaintiff should have examined the attestors to Ex. R-1 to establish that the plaintiff did own an immoveable property and thereafter she disposed of the same. In my opinion, such a roving inquiry involving the attestors of the document is totally unnecessary. This is not a case where the defendant sought for a relief in a suit based on such documents. The sale deed has been projected to demolish the stand taken by the plaintiff in the prayer for declaring her an indigent person. In such a summary disposal of the prayer for declaring the plaintiff as indigent person, the necessity to examine the attestors to those documents does not arise. At any rate the plaintiff who has infact suppressed the facts that she possessed immoveable property cannot complain that Ex. R-1 should not be relied upon as the attestors to the documents were not examined, more especially, when she was a party to said sale deed.

The defendant has established before the Court that infact he paid a sum of Rs. 25 lacs just 2 years prior to the present litigation not only to the mother, but also to the plaintiff herein. He has also established by filing Ex. R-1 that the plaintiff who owned sizeable immoveable property disposed of the same before ever the order impugned was passed by the trial Court.

I find that there the plaintiff failed to establish that she was an indigent person, whereas the defendant has established that the plaintiff had wherewithal to pay the Court Fee of Rs. 51,236/-.

Therefore, the impugned order stands set aside and the respondent herein who is the plaintiff in the suit is directed to pay the Court Fee within one month from the date of this order. The revision is allowed accordingly.