Jeyabalan vs Virumandi

Aruna Jagadeesan, J.—This Civil Revision Petition is filed against the order dated 10.2.2009 passed in IA. No. 99/2007 in a pauper

petition in POP. No. 9/1998 by the learned Additional District Cum Sessions Judge (FTC III) Madurai, dismissing the petition filed by the

Petitioner under Order 33 Rule 9 of Code of Civil Procedure.

The Respondent has filed a suit for recovery of a sum of Rs. 19,54,493/- based on promissory notes dated 21.7.1996, 5.2.1997 and

5.10.1997 with interest @ 2% per month. The said suit was filed by the Respondent as an indigent person, as he did not possess sufficient means

to pay the court fee and after enquiry, the Respondent was declared as an indigent person and as against the said order, the Petitioner filed an

application in IA. No. 364/2001 to set aside the said exparte order and the court below allowed the petition on condition. Since the said condition

was not complied with, the application came to be dismissed. Thereafter, the suit was numbered as OS. No. 79/2004, it was transferred to the

Additional District Cum Sessions Judge (FTC III) Madurai.

Pending trial, the Petitioner filed an application in IA. No. 99/2007 to withdraw the permission granted to the Respondent and to direct him to

pay the court fee on the ground that the Respondent had suppressed various factors with reference to his employment as well as the ownership of

agricultural lands and that he possess sufficient means to pay the court fee and besides that, the Respondent had sold one of the house sites to his

own brother in February 1998.

The Respondent had filed a counter, denying the allegations and submitted that he got employment in the Cooperative Bank in August 1998 and

is getting a meagre salary of Rs. 4800/- p.m. and further the property referred to by the Petitioner is a joint family property and the lands are only

dry lands lying fallow. He would further submit that he sold the site to his brother to settle the dues payable to the creditors.

The court below by the impugned order dismissed the petition after analysing the submissions made by both the parties. Hence, this Civil

Revision Petition has been filed.

Mr. K. Srinivasan, the learned Counsel for the Petitioner would contend that the court below over looked the fact that the Respondent had

suppressed many factors such as owning agricultural lands, his employment and receipt of salary of Rs. 10,000/- per month and also the admission

made by the Respondent in his testimony that he had sold the house property above two months prior to the filing of the pauper application. He

would submit that when the evidence disclosed that the Respondent possessed of such assets and if he had disclosed all these in the plaint, leave to

sue as in forma pauperis would not have been granted to him and hence, his conduct would certainly amount to improper conduct within the

meaning of Order 33 Rule 9 of Code of Civil Procedure. He would further contend that an immunity from a litigation unless the requisite court fee

is paid by the Plaintiff is a valuable right for the Defendant and Order 33 Rule 6 of CPC confers a right on the opposite party to participate in the

enquiry into the pauperism and adduce evidence to establish that the Plaintiff was not a pauper. The learned Counsel placed reliance on the

decision of the Honourable Supreme Court rendered in the case of Shri M.L. Sethi Vs. Shri R.P. Kapur, , for the aforesaid preposition of law.

It is no doubt true that Rule 9 of Order 33 of CPC speaks for withdrawal of permission to sue as an indigent person and the very use of the

word ""withdrawal"" emphasises that the permission to sue as in forma pauperis can be subsequently withdrawn by the court on the application of

the Defendant or of the Government under conditions mentioned in Rule 9 of Order 33 of Code of Civil Procedure. For securing an order under

this provision, however, it is necessary that the Defendant/Government must establish as a matter of fact that the Respondent/Plaintiff had

suppressed his realisable assets as required under the provisions of Order 33 of CPC and consequently that his means are such that he ought not

to continue to sue as an indigent person.

The decision relied on by the learned Counsel for the Petitioner rendered in the case of Venkatesh Iyer Vs. Bombay Hospital Trust and others, ,

only emphasises that if the existence of realisable assets were not disclosed in the plaint at such grant of order, then such non disclosure would

amount to ""improper conduct"". The other decisions relied on by the learned Counsel for the Petitioner rendered in the cases of Dr. D.

Hemachandra Sagar and Anr. v. D. Prithviraj and Anr. AIR 2004 KNT 33, K.V. Ananthanarayanan and two others v. K.G. Radhakrishnan 1992

1 LW 316 and Al. Ar. Alagappa Chettiar Vs. Pl. Ct. Palaniappa Chettiar, are relating to the provisions under Order 33 Rule 1 of CPC i.e. before

granting permission to sue as an indigent person. The order granting permission to sue as an indigent person cannot be revoked under Order 33

Rule 9 of CPC on the ground that even at the time of making it he possessed of sufficient means. That is a matter which could or ought to have

been urged before the court at the stage when the leave was granted and cannot be the subject matter of discussion at a later stage.

The Petitioner brings the case of the Respondent under the conditions enumerated in sub Clauses (a) and (b) of Rule 9 of Order 33 of Code of

Civil Procedure. Rule 9(a) would get attracted in case the Plaintiff/Respondent possessed of such realisable assets, which could be converted into

cash and could be used for financing the litigation and if the Plaintiff had disclosed all these in the plaint, leave to sue as in forma pauperis would not

have been granted to him at all.

The other ground specified under Rule 9(b) is that his means should be such that he ought not to continue to sue as an indigent person. One of

the factors relied on by the Petitioner is that the Respondent is an employee of the Central Cooperative Bank Limited, drawing a monthly salary of

Rs. 10000/- and so he possess such means which would disentitle him from continuing as an indigent person. There is no dispute that the

Respondent has been appointed as an employee of the Central Cooperative Bank Limited, but that is only on 14.7.1998 subsequent to the filing of

this application. Though his gross salary is Rs. 10286/- his carry home salary is only Rs. 4171.85/- after deduction towards personal loan obtained

by him. The Respondent would submit that the said salary is not sufficient even to maintain his family and it cannot be taken into consideration to

hold that he has sufficient means to pay the court fee, which is Rs. 1,44,096.50/-. Considering the huge court fee which he has to pay, the meagre

salary which he receives in hand cannot be taken for considering that he possess sufficient means.

The next factor pointed out by the learned Counsel for the Petitioner is that the Respondent has got 1/6th share in the joint family properties

comprised in S. No. 210 and 1/7th share in the total extent of 2.11.5 Hectares comprised in S. No. 100/2. It is the case of the Respondent that he

has got only a fraction of share and as lands are lying fallow no income is derived from those lands. He would deny the claim of the Petitioner that

to his share alone he receives Rs. 2 lakhs per year. It is not the case of the Petitioner that the adangal produced in this case shows that the lands

have been cultivated with commercial crops continuously and the Respondent was getting sufficient income as his share. The court cannot presume

without any evidence or material that the Respondent could earn an amount of Rs. 2 lakhs per year from the agricultural lands in which he has only

1/6th or 1/7th share.

As pointed out by the court below, the Respondent is not the exclusive owner and he is in joint enjoyment of that item along with his father and

brothers. Even assuming that the said agricultural lands in which the Respondent has got 1/6th or 1/7th share should be taken into account for

finding out the means of the Respondent, still it has to be found out as to whether there will be an immediate purchaser for that undivided share

which the Plaintiff has yet to reduce to his exclusive possession. Practically speaking, the difficulty of finding a suitable purchaser for the alleged

undivided share of the Respondent has also to be taken into consideration. Unless he gets his share divided and reduces the same into his

possession, there will be considerable difficulty in finding out a purchaser for a reasonable price. Therefore, it cannot be held that the Respondent

has got realisable assets which could be converted into cash and could be used for paying the court fee.

It is relevant to point that possession of sufficient means does not mean possession of sufficient property and it does not include such means on

which bare living of party and his family depends and it is only a capacity to raise funds by normal and available lawful means that would be taken

into account.

The words ""sufficient means"" have been interpreted by the Division Bench of the High Court of Himachala Pradesh in the case of Gehru Vs.

Charan Das Dogra, , wherein it is held thus:

By now it is well settled that ''possession of sufficient means'' does not mean possession of sufficient property. It is possible that one may be

possessed of sufficient property but still may not be possessed of sufficient means. It will depend on the nature of the property. It will also depend

whether the person concerned can easily come in possession of sufficient means. All this varies from case to case.

It is interesting to note the observations made by the High Court of Himachala Pradesh in the above said decision describing about the intention of

the legislature to make provision of Order 33 of CP in the words of his Lordship Chief Justice of HP as he then was at paragraph 4 of the said

decision, which is extracted below:

It is unfortunate indeed that in our socialistic democratic republic justice is still being sold. We are still carrying on with the old colonial traditions.

The doors of the temple of justice are closed to a person unless he has got sufficient money. The money is needed not only to pay the heavy court

fee but also for the payment of getting legal assistance and meeting other sundry expenditure. Temple of justice should be open to all and sundry

just like a temple of God. But the States instead of trying to ensure free and speedy justice, are always out to increase the court fee. In some of the

States it has become a source of revenue also. It is strange indeed that the State as a Socialistic Republic is out to mint money out of the miseries

of the litigants. It is true that a provision like 0.33 Rule 1 has been on the statute book for last about 100 years to enable the poor to sue in forma

pauperis. But then it was never more than an eye wash. Where a person has just enough money to meet the court fee then he must pay the court

fee become literally a pauper and then enter the gate of justice. In other words, he has practically to strip himself naked before praying for justice.

Even after paying the court fee he has still to pay at least for summoning his witnesses and meet other sundry expenses provided he succeeds in

getting free legal aid of sorts. And in the instant case the Defendant, who is practising lawyer and against whom serious allegations of fraud in

depriving the Appellant of his valuable property have been made, is doing his best to throw the Appellant out of the court of justice on the very

threshold.

In the case of K. Mariappan v. Ranganayaki 1994 1 LW 381, this Court has held that person possessed of sufficient property may still be not

possessed of sufficient means. The same view is reiterated in the case of A. Prabhakaran Nair Vs. K.P. Neelakantan Pillai, , that possession of

sufficient means would only mean capacity to raise money and not actual possession of property.

By applying the aforesaid position of law in this case, I am of the view that the Respondent may possess some property a part of which he was

compelled by pressing needs to discharge debts as in this case he had to pay the creditors which he had borrowed while doing money lending

business and the loss occurred due to non payment of amount by the persons like the Petitioner and in such circumstances, it cannot be said that

there is realisable assets in the hands of the Respondent. In such case, it would not deprive the Plaintiff to have the benefit of Order 33 of Code of

Civil Procedure. It cannot be the purpose of this legislation that an indigent person should first deprive himself of the sole means of livelihood or

alienate all his assets and then seek justice in penury.

That apart, in this case, the trial court rejected the application of the Defendant to dispauper the Plaintiff. The State Government did not

challenge the order. The question of indigency has been decided by the trial court on evaluation of evidence. In such view of the matter, this Court

cannot interfere with the said order in exercise of revisional jurisdiction where there is no illegality in the order passed by the trial court. It could be

seen from the records that the attempt of the revision Petitioner appears to be to take a chance to see that some how or other the ordeal of a trial

could be avoided.

In view of the reasons aforesaid, I am of the considered view that this Civil Revision Petition is without any merits and hence, the same is

dismissed. No costs. Consequently, the connected MP is closed.