Harbans Singh vs Jasbir Singh

K. Kannan, J.—The revision petition is against the order disallowing the continuance of appeal as an indigent person. The contest taken in

application for prosecution the appeal as indigent person was that the appellant-petitioner had not disclosed his entitlement to another property of

53 kanals 2 marlas of land in a specific Khasra number. The petitioner had already disclosed his own ownership of house in abadi and an acre of

land in his possession which according to him was not sufficient to earn income for paying court fee. Learned counsel for the petitioner would now

contend that entitlement to the property which is referred to through a revenue official''s record is admitted but however the property is not in his

own possession but in the possession of his brother. He could contend that he is a senior citizen with failing eye sight and he is not able to make

any income from the possession of lands which he has nor has he obtained income from the property in which he is entitled to a share which is in

the possession of his brother.

The counsel relies on judgment of this Court in Smt. Vijay Rani Vs. Sh. Nasib Chand Sharma, , where the Court was examining whether the

subject matter of the suit itself was required to be taken. The Court rejected that it cannot be taken. There is not even an issue before this Court.

The possession of property other than the subject matter of suit is what was pointed out in the impugned order. The above judgment cited

therefore has no application. In yet another judgment in Shanti Devi and Others Vs. Dharma Pal and Others, where the permission to file an appeal

as an indigent person was refused on the ground that the appellant was earning salary and owned agricultural property which was capable of

yielding substantial income. The Court set aside the order refusing such permission on the ground that the salary of the appellant was exempt from

attachment and even the agricultural income was also exempt u/s 61. The Court, therefore, was examining the issue of attachment of a property as

relevant. This again, in my view, is irrelevant for I am not setting out any pleas of land as being owned by the petitioner which is not capable of

being attached. This judgment also cannot apply. In O.P. Neelam Hosiery Works and Another Vs. State Bank of India and Others, , the Himachal

Pradesh High Court was considering the sufficiency of means as irrelevant criterion and not the sufficiency of property. The Court was not,

however, considering a situation of a party suppressing the existence of a particular item of property. Therefore, this judgment also does not apply.

To the same effect was also a reasoning of a Division Bench in Rajamma Joseph Vs. Binu Prasad and Others, where the Court was holding that a

mere possession of immovable property with a proof of partition was not sufficient.

All these decisions have no application where the plaintiff was suppressing the existence of property even and was also contending that such

property was not capable of yielding income. The suppression of a material fact itself ought to be a sufficient ground for denying to the petitioner

the benefit of prosecuting the appeal as an indigent person. Order 33 Rule 9 CPC contains provision for dispauper. It allows for an application to

have the plaintiff dispaupered, inter alia, on the ground that he is guilty of vexatious or improper conduct. This provision has always been applied

also as a test for assessing whether the plaintiff could be permitted to prosecute the suit as an indigent person. Suppression of the material fact

relating to possession or entitlement has been held to be improper conduct within the meaning of this provision in Mathai M. Paikeday Vs. C.K.

Anthony, where the Supreme Court held that non-production of bank account transaction details amounted to suppression of fact and an adverse

inference can be drawn. In Venkatesh Iyer Vs. Bombay Hospital Trust and others, , the Bombay High Court held that non-production of assets

amounts to improper conduct and in respect of consideration with said assessment. The dismissal of the plea by the appellant to prosecute the

appeal as indigent person was perfectly justified and I find no reason to interfere with the same. The petitioner will have a time of two months for

payment of court fee and if it is not done, the court will deal with the issue in accordance with law. The revision petition is dismissed but with above

directions.