Fathimunnisa Begum vs Dr. Hymavathi and Others

E. Dharma Rao, J.—The appeal is filed against the order dated 6-a-1991 passed in O.P. No. -212 of 1989 on the file of the Subordinate Judge, Khammam by which the petition filed under Order 33, Rule 1, C. P. C. by the appellant for permission to sue the respondents as an indigent person was rejected.

The facts leading to the filing of the above petition are that the petitioner was operated upon tubectomy on 21-11-1985 in the Government headquarters hospital at Khammam by the first respondent. By that time, the petitioner was having four children. Two years after the operation, to her surprise the petitioner conceived and delivered on 16-4-1988 male twins who were aged more than one year at the time of filing of the above petition. The delivery took place in the Government headquarters hospital at Khammam. The petitioner''s husband is a fourth class employee in Malaria department. The tubectomy operation was undertaken because they could not maintain large family and as such the operation was conceived and planned to have a better future life of the family members. Due to the negligence of the doctor who conducted operation on the petitioner, the tubectomy operation failed and the petitioner begot two more children. Therefore, the above petition was filed claiming compensation of Rs. 50,000/-with 12% per annum as an indigent person.

The respondents have filed their counter and they have taken a stand that the petition is not maintainable and that the allegation that the petitioner has no means to pay the court-fee is not at all correct.

During the course of enquiry before the court below, the petitioner examined herself as P. W. 1 and stated that her husband is working as field worker in Malaria department and drawing a monthly salary of Rs. 1,000/-. The first respondent who examined herself as R.W. 1 filed the salary certificate (Ex. B4) of P. W. 1''s husband to show that he was drawing a salary of Rs. 1.393/- per month. The lower Court, after considering the oral and documentary evidence adduced by either side, held that the petition filed by the petitioner as an indigent person is not maintainable and rejected the same under Order 33, Rule 5 of C. P. C.

Order 33, Rules 1 and 5 reads as follows :--

Rule 1 :--

Subject to the following provisions, any suit may be instituted by an indigent person;

Explanation I : 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

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit;

Explanation II ;

Any property which is required by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person;

Explanation III:

Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity;

Rule 5 :--

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 art 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.

Basing on the facts and circumstances of the case and the Rule position, Mr. B. Viswanatha Reddy, the learned counsel for the appellant submitted that the order passed by the Court below is contrary to Order 33, Rules 1 and 5 and the Court below instead of dismissing the original petition should have directed the petitioner to pay the court-fee taking into consideration the income of the appellant''s husband, that the lower Court should have seen that for not maintaining the family, the appellant had to decide to undergo tubectomy operation and the income derived by her husband as Malaria field worker is not sufficient to maintain their family and it is beyond her capacity to pay the court-fee. On that ground also, the order passed by the lower Court is liable to be set aside. In support of his contentions, he relied on a decision in Sangannapalli Satyanarayana v. Venigalla Kotiratnam (1987) 1 A LT 558, wherein it was held in paras 4 and 5 at pages 560 and 561 as follows :--

"The structure of Order 33, Rule 2, C. P. C. shows that such a catastrophe may visit many an innocent and faultless person. Under Order 33, Rule 2, application to sue as an indigent person is required to show the plaint particulars and their estimated value. In addition such an application is also required to be signed and verified in the manner prescribed for the signing and verification of pleadings. Broadly Order 33, Rule 2 may be taken to specify three requirements relating to plaint, schedule and signing and verification the failure to comply with any one of which would result by the operation of Order 33, Rule 5 in mandatory dismissal of the petitioner''s application to sue as an indigent person. These are all requirements relating to pleadings. Defects in plaints, in schedules even in verifications are never treated by the CPC as incurable and fatal to the maintenance of claims except in the case of a poor man''s application to sue as an indigent person. It is this interpretation of Order 33, Rule 5 which has commended itself to a learned single Judge of this Court in Navadu Nuka Raju Vs. Rajani China Appanna and Others, . In that judgment the learned Judge held in categorical terms that motive for non-mentioning of the property in the schedule is irrelevant. Another learned Judge in State Bank of India, Secunderabad v. A. Kannabhiram 1979 (2) A LT 28 (Short Notes) held that failure to comply with the requirements of the schedule should result in summary dismissal of the application........"

The literal reading of Rule 5 of Order 33 of CPC would undoubtedly support these rulings. I cannot, therefore, find fault with the lower Court for having followed the judgments of this Court and the Madras High Court and dismissed the petitioner''s application to sue as an indigent person for trivial reason that he did not mention his moveable property worth Rs. 400/- in the schedule to his application. The question is whether such a view of Order 33, Rule 5 of C.P.C. is correct."

Ultimately, the learned Judge held in para 7 at page 563 that :--

"............ it must be held that mere failure of the petitioner to show moveable property and its value cannot, in the facts of this case, be a decisive basis for refusing to permit the petitioner to sue as an indigent person. As pointed out above, a sum of Rs. 400/- possessed by the petitioner would be woefully inadequate to pay the court-fee. That amount, therefore, would not make any difference to the question whether the petitioner has means to pay the requisite court-fees or not. That is the question which the Courts should decide under Order 33 of Civil Procedure Code. The mission of Order 33 of CPC is not to discipline the poor applicants but to enable them to sue as indigent person. ..........."

So, following the principle laid down in the above decision. I consider that the appellant in this case also is a poor lady and after having four children, she and her husband decided to undergo tubectomy operation and accordingly she was operated upon and due to the negligent act of the doctor who conducted the operation, she gave birth to two more male children and the income derived by the appellant''s husband is very meagre. In the circumstances, the appellant filed the above petition to permit her to sue the respondents as an indigent person instead of paying the court-fee. The order of the lower Court in rejecting the petition is against the facts and circumstances of the case and contrary to the dicta laid down in the above decision. In the circumstances, the appeal is allowed with costs and the order of the lower Court is set aside.