Devarakondappa and Another vs K. Rajeshwari alias Rajalakshmi

N.S. Veerabhadraiah, J.—This is the defendants'' revision being aggrieved of the order in P. Mis. No. 9 of 1998 by the I Additional Principal Judge, Family Court, Bangalore, dated 9-7-2001 allowing the petition filed under Order 33, Rules 1 and 2 of the CPC to sue as indigent person.

The brief facts are as follows.--

The plaintiff being the widow of one D. Ashwini Prakash filed a suit for maintenance and also claiming damages against her in-laws with an application under Order 33, Rules 1 and 2 of the CPC praying permission to sue as indigent person. The plaintiff got herself examined as P.W. 1, whereas, the defendant 1 was examined as D.W. 1. The learned Judge considering the evidence of the parties held that the plaintiff has no means. Accordingly, allowed the petition filed under Order 33, Rules 1 and 2 permitting to sue as indigent person. It is this order which is now questioned by the defendants in the present revision.

The learned Counsel Sri M. Aswathanarayana Reddy for the petitioners contended that the provisions of Order 33, Rules 2, 3 and 5 are not complied. Therefore, allowing the application by the Family Court is erroneous. He also relied on the decision in A. Ahmed Pasha and Another Vs. C. Gulnaz Jabeen, and submits that, where the mandatory provisions are not complied, the application to sue as an indigent person has to be rejected.

On the other hand, the learned Counsel for the respondent/plaintiff submits that the plaintiff is none other than the daughter-in-law of the defendants and has given all the details of the properties held by the defendants/petitioners and that the entire property was taken over by the defendants after the death of her husband. Therefore, the non-mentioning of the properties which is not in the custody of the plaintiff, does not arise. Accordingly, justifies the impugned order and prayed to dismiss the revision.

In the light of the submission, the point for consideration that arise:

"Whether the impugned order permitting the plaintiff to sue as an indigent person suffers from infirmity, if so liable to be interfered with?"

It is not in dispute that the plaintiff, the daughter-in-law of the defendants, has filed the suit for maintenance as well as for damages. In the plaint averments, she has given the particulars of the property that were held by her late husband and which were taken away by the defendants in paras 12, 13 and 14. At para 15 of the plaint, it is specifically stated that "the entire joint family properties as well as the properties of late Ashwini Prakash are being managed by the defendants. They are receiving the complete income arising out of the said properties". At para 20 of the plaint, it is stated that the plaintiff was driven away from the house by the defendants. According to the pleadings, it shows that she was made to stand in the streets. It is on account of the said fact, the plaintiff filed an application, under Order 33, Rules 1 and 2 praying permission to treat her as an indigent person to prosecute the suit.

Order 33, Rule 1 of the CPC reads:

"1. Suits may be instituted by indigent persons....".

It makes clear that a person does not possess sufficient means to pay the prescribed Court fee, such a person is entitled to institute a suit as indigent person. In the present case, she has specifically pleaded in the plaint that all the properties have been taken over. Therefore, in my opinion, Rule 1 is satisfied for the purpose of instituting the suit as indigent person. Now coming to Rule 2 which reads as follows:

Order 33, Rule 2 of the CPC

"Contents of application.--Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings".

It makes clear that a person suing as indigent person has to specifically mention the movable and immovable properties belonging to the applicant with its estimated value. The respondent has specifically pleaded that she does not possess any property. At para 3 of the plaint she has pleaded as follows.--

"The plaintiff do not possess any money to pay the Court fee in this suit. She is also not possessed of any property through which she can convert into money".

Hence, Rule 2 of Order 33 requires that the plaint should contain particulars, but in the case, the plaintiff having specifically pleaded that she does not possess any property, it amounts to compliance of Rule 2 of Order 33. Therefore, the contention that the particulars of the property are not furnished cannot be accepted. Here is a case, the daughter-in-law suing her in-laws for maintenance with the specific pleadings that the entire properties have been maintained by her in-laws. Under such circumstances, she furnishing the details of movable or immovable properties which she does not possess, does not arise having regard to the facts of this case. Order 33, Rule 5 thus reads:

"Rule 5. Rejection of application.--The Court shall reject an application for permission to sue as an indigent person--

(a) where it is not framed and presented in the manner prescribed by Rules 2 and 3, or

(b) where the applicant is not an indigent person, or

(c) where he has, within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person:

Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or

(d) where his allegations do not show a cause of action, or

(E) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter, or

(f) where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or

(g) where any other person has entered into an agreement with him to finance the litigation".

Where the plaint does not contain the ingredients of Order 33. Rules 1 and 2 enables the Court to reject the application filed under Rule 5. On a careful reading of the plaint averments, as well as the evidence of the plaintiff, does not attract the provisions of Rule 5 so as to reject the application filed under Order 33, Rule 1. In the case of Abhoobakar, supra, it is clearly held that where an application is rejected on merits, even if the rejection were also on the ground of non-compliance with the Order 33, Rule 5(a) was not justified in view of the Karnataka Amendment of Rule 5-A, it does not make much difference to the outcome of the application. The Court while considering the provisions of Order 33, Rules 1, 2, 3 and 5 in the aforesaid case, at para 13 has thus observed:

"13. On a perusal of the order passed by the learned Trial Judge, it is clear that the parties had been permitted to lead evidence. Appellant/petitioner has also placed material before the Court disclosing as to some of his assets. It has also come on record that the appellant/petitioner was a businessman carrying on business in timber. With regard to the want of sufficient means, what has been narrated in his evidence is that the petitioner was living with his father-in-law as income from his own business and other properties were not sufficient and as such, is a person not possessed of sufficient means for paying the Court fee".

In the present case, when the daughter-in-law has been dragged out of the house with the empty hands and she having left with no properties, she furnishing the properties held in her possession does not arise. In the cross-examination, it is not even elicited that she possess any such property. Therefore, the decision reported cannot be made applicable to the facts of this case.

For the foregoing reasons, I do not find any merits in this revision. Accordingly, the revision is dismissed.