Godupalle Pothulappa vs State of Andhra Pradesh and others

This CMA is presented by the original plaintiff to this Court being aggrieved by the judgment and order dated 22-3-1994 passed in OP No.3 of 1993. By the impugned order, the Court below rejected the case of the petitioner pleaded under Order 33, Rule 1 of the CPC by holding that the petitioner is not an indigent person. The learned Counsel for the petitioner strenuously contended that the petitioner is an indigent person; and the Court below is in error in not treating him as an indigent person.

The Court below rejected the case of the petitioner that he is an indigent person on three counts:

That he received an amount of Rs.1,680/- towards pension; he received an amount of Rs.7,200/-towards gratuity; he received an amount of Rs.900/- towards provident fund; he received an amount of Rs.800/- towards recurring deposit.

That he has a house/hut of the value of Rs.7,000/-.

That his wife is an employee working as Sweeper in the muncipality in question.

On all the above counts, the learned Judge held that the petitioner is a solvent person and capable of paying the Court fee.

The learned Counsel appearing for the petitioner contended that the reasons given by the Court below are unsustainable. The first reason that the petitioner possessed the amounts mentioned above cannot be a ground under Order 33, Rule 1 of the Code of Civil Procedure. He invited my attentionto Order 33, Rule 1 of the Code of Civil Procedure, particularly to sub-clause (a) to Explanation 1, which reads as under:

"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"

Relying on the above provision, the learned Counsel for the petitioner contended that in order to find out whether the petitioner has got sufficient means or not we have to consider the property exemption from attachment, provided in the said explanation. He further invited my attention to clauses (g) and (k) of the proviso to Section 60 of the Code of Civil Procedure. Under clause (g) of the said section, the gratuity is exempted from such attachment. So also the pension received by him is exempted under clause (k) of the said section. On this basis, he contended that two amounts i.e., Rs.7,200/- which the petitioner has received towards gratuity and Rs.900/- which he had received towards provident fund have to be excluded. After such exclusion, the amount that would be available at the disposal of the petitioner is, the one shown under Ex.B1 i.e. Rs.1,680/- which he had received towards anticipatory pension and Rs.800/- which he had received towards recurring deposit. The total amount, on these two heads, comes to Rs.2,480/-. In addition to that, the petitioner has got a house/hut valued at Rs.7000/-. So the total property that would be at his disposal is the house/hut property that would be at his disposal is the house/hut property worth Rs.7,000/- plus Rs.2,480/- which comes to Rs.9,480/-. On the basis of the valuation made in the suit, the total Court fee payable by the petitioner would be Rs.18,023/-. Therefore, he contended that the Court fee payable is more than what the petitioner possesses and has no sufficient means to pay the Court fee payable on the suit.

From the submissions made by the Counsel for the petitioner, it is clear that two items i.e., Rs.7,200/- towards gratuity and Rs.900/- towards provident fund, have to be exempted under clauses (g) and (k) of proviso to Section 60 of the Code of Civil Procedure, and they are excluded. After such exclusion, as submitted by the learned Counsel for the petitioner, the petitioner would be possessing property worth Rs.9,480/- at his disposal. The Court below has proceeded on the basis that the plaintiff himself has claimed exhorbitant compensation in order to avoid Court fee. It is pre-mature to determine the claim made by the petitioner. A citizen is entitled to claim whatever amount he is entitled to. For the purpose of Court fee, what has to be looked into is only the averments of the plaint. However, as against this the Counsel for the respondents contended that the amounts referred to above have been received by the petitioner after the filing of the OP. It is, no doubt, true under Explanation II of Order 33, Rule 1 "any property which is acquired 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". But having considered the property which is acquired subsequent to the filing of the OP the above figures were arrived at. This Court in Mandam Abdul Sattar Saheb Vs. H. Abdul Hakeem and Others, , held that whenever the quotum of Court fee payable is more than the value of the property the plaintiff possesses, he may be treated as an indigent person. In the instant case, taking into account the house property and also the provident fund, gratuity, pension amount and recurring deposit, the value of the property is less than the Court fee payable. And, therefore in the light of the above decision, the petitioner would be an indigent person.

The second reason given by the Court below under Order 33, Rule 1 of the CPC is that the petitioner has got a house property worth Rs.7,000/-. As I have already stated above, possessing of house worth Rs.7,000/-would not disable the petitioner from claiming any benefit under Order 33, Rule 1 of the Code of Civil Procedure, because the Court fee that is payable is more than what the property the petitioner possesses. In the light of the reasons given above regarding the first point, even the second reason cannot be accepted.

The third reason given by the Court below is that the petitioner''s wife is employed. On the ground that the petitioner was terminated, as one of his leg was amputed, his wife was appointed on compassionate grounds. The intendment of the law appears to be that the family has to survive. Nevertheless, whatever the wife earns, it is her self- acquired property over which the husband has no domain. Order 33 refers to an "Indigent Person" meaning thereby it has to be seen, whether the plaintiff himselfis an indigent person or not, not that his wife or children are indigent persons. Therefore, even this reason also is unsustainable.

For the foregoing reasons, I hold that the petitioner is an indigent person and he may be permitted to sue as an indigent person under Order 33, Rule 1 of the Code of Civil Procedure. Accordingly the impugned order is set aside and this appeal against order is allowed. No costs.