K. Ambalavanan vs The Bank of Madurai (Ltd.)

Ramaprasada Rao, J.—This Letters Patent Appeal is directed against the order of Kailasam J, dated 17th November 1966, in Civil Miscellaneous Petition No. 12412 of 1966, by which he, at the instance of the Respondent, revoked the leave granted by him earlier in Civil Miscellaneous Petition No. 14865 of 1965 which entitled to Appellant to file the appeal to this Court in forma paurperis. The earlier order was apparently made under Order XLIV of the Code of Civil Procedure.

We shall set out the relevant facts. Original Suit No. 11 of 1960 on the file of the Subordinate Judge''s, Court, Thanjavur was filed by the Respondent against the Appellant his father and others. That was a mortgage suit which was ultimately decreed on 17th July 1964, by the Subordinate Judge, Thanjavur. The Appellant, who was the second Defendant in the suit filed a petition in this Court, Civil Miscellaneous Petition No. 14865 of 1965, for leave to file an appeal in forma pauperis. By an order dated 31st January 1966, Kailasam J., directed an enquiry by the lower Court into the alleged pauperism of the Appellant and galled for a report. The lower Court held an enquiry. In fact, the Respondent placed certain material before the Court below the persuade the learned Subordinate Judge to reject the application on the ground that the Appellant was guilty of suppression and consequential improper conduct. Inter alia it was suggested that the Appellant was possessed of properties, to wit, lands, coconut topes, cash in the shape of the deposits with the Estates Abolition Tribunal, etc., other than those which are the subject-matter of the appeal, and that as such assets were not disclosed when the petition for leave to institute the appeal in forma pauperis was filed, the petition ought to be rejected in limine. The Appellant was fully cross-examined on this aspect in the lower Court. The learned Subordinate Judge, after such full-fledged enquiry, found on the evidence before him that the Petitioner was not in possession of such properties or funds. He also observed that, though the assets mentioned belonged to the family of which the Appellant was a member there were no funds available with the Estates Abolition Tribunal and that all the other properties mentioned by the Respondent were involved in litigation due to the heavy indebtedness of the father of the Appellant. He accordingly found that the Appellant was not possessed of the necessary means to pay the requisite Court-fee. The Respondent filed objections to the. report and the matter finally came up before Kailasam, J., who granted leave, as prayed for. It appears, however, that the name of the Counsel for the Respondent was not shown in the clause list on the date of the hearing. Thereafter, the appeal was duly numbered as A.S. No. 683 of 1966 on the file of the Court and certain interim orders were also passed thereon. Then Civil Miscellaneous Petition No. 12412 of 1966 was filed by the Respondent to revoke the leave granted by this Court enabling the Appellant to file the appeal in forma pauperis. Kailasam J., in his order, dated November 17, 1966, cancelled his earlier order. It is significant that the Respondent filed Civil Miscellaneous Petition No. 12412 of 1966 u/s 151 of the CPC Code and not even under Order XXXIII, Rule 9, CPC Code, and did not ask for review of the earlier order. The Respondent''s application rested on the only ground that there was suppression of material and that the applicant was not a person entitled to file the appeal in forma pauperis.

The Appellant, aggrieved against this order, as above, has filed this Letters Patent Appeal. Inter alia, the learned Counsel for the Appellant says that the report of the learned Subordinate Judge on the question of the pauperism of the Appellant having been called for, perused and virtually accepted by this Court, the earliest order granting leave cannot be revoked. His other objection is that as the impugned order has dispauperised the Appellant, it is not sustainable because Civil Miscellaneous Petition No. 12412 of 1966 is not even filed under Order XXXIII, Rule 9, but only u/s 151, CPC Code.

At this stage, it is convenient to notice the limbs of Order XLIV which provides for pauper appeals. Order XLIV takes into its fold Order XXXIII, CPC Code. Order XLIV reads as follows -

(1) Any person entitled to prefer an appeal who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable

(2) The Appellate Court after fixing a day for hearing the applicant or his pleader and hearing him accordingly, if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.

The Inquiry into the pauperism of the applicant may be made either by the appellate Court or under the orders of the appellate Court by the Court from whose decision the appeal is preferred:

Provided that, if the applicant was allowed to sue or appeal as a pauper in the Court from whose decree the appeal is preferred, no further inquiry in respect of his pauperism shall be necessary, unless the appellate Court, after hearing the Government Pleader, sees cause to direct such inquiry.

The words any person entitled to prefer an appeal in the opening sentence of Order XLIV, Rule 1 are somewhat misleading. The entitlement of a person to prefer an appeal, in case it is intended to be filed as a pauper appeal is subject to the statutory prescriptions laid down later in the said order. Analysing the Order as a whole, the following principles may be evolved: -

(i) In case an appeal is sought to be filed in forma pauperis, its presentation, etc., are governed by Order XXXIII , CPC Code. (Order XLIV, Rule 1.)

(ii) The appellate Court can by itself undertake the enquiry into pauperism or cause an enquiry to be made for that purpose by the Court from whose decision the appeal is preferred. (Order XLIV, Rule 2.)

(iii) No such above enquiry is necessary, if the person had already secured such leave to file the original suit as a pauper; if after hearing the Government Pleader, the Court considers that such an enquiry afresh is necessary, it can do so. (Proviso to Order XLIV, Rule 2.)

(iv) After the question of the pauperism of the proposed Appellant is decided one way or the other as above, the Court after fixing a date for hearing the applicant or his pleader, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. [Order XLIV, Rule 1, Sub-rule (2.)]

From the above statutory procedure prescribed for the institution and admission of appeals in forma pauperis, it is seen that when once an enquiry into the pauperism is directed to be done by the lower Court, the report is final, as it is the result of delegation of authority, and all the more it is so when once the appellate Court accepts the same and allows the appeal to be numbered. It is so in this case. The intendment of the Legislature in prescribing a strict procedure is not to encourage such proceedings, if the applicant is not deserving. It is mainly a matter for the State, and the Court has to find whether the judgment is contrary to law and fit for being appealed against.

Thus, when the report of the lower Court called for by the appellate Court is favourable to the applicant, and when the State through its Government Pleader has not effectively opposed the acceptance of the report and consequentially leave is granted by the appellate Court, such a concluded matter if it is sought to be revoked, only to dispauperise the applicant, it could be done only by means of an application for review and not by a summary application by the contesting party u/s 151 of the Code of Civil Procedure, to cancel the original order of the appellate Court allowing the applicant to file the appeal as a pauper. It is, of course, undeniable that, when once the Court grants leave after accepting the report of the subordinate Court and after finding no reason to reject the application, then it cannot lightly interfere with its own order at the instance of the opposing party in the appellate Court. In fact, a Bench of this Court in Kanni v. Viswanathan ILR [1968] Mad. 497, 510, observed as follows:

The fact that the Court issues a notice to the Respondent can normally only mean that the Court is unable to take up its mind, whether the decree sought to be appealed against satisfies the requirements of Order 44 Rule 1(2), and if that is so, that would clearly be a confession that the matter is of sufficient substance to be heard after notice to the Respondent, that is, that it merits admission.... When that has been done the Judge can have no possible occasion for rescinding the order and have second thoughts on the question of the admissibility of the appeal.

The above principle also supports the contention of the learned Counsel for the Appellant. Therefore, we are of the view that it was not open to this Court to cancel its earlier order in Civil Miscellaneous Petition No. 14865 of 1965, in an application by the contesting party u/s 151 of the CPC Code. Further, in such circumstances,'' it is imperative as indicated in the proviso of Rule 2 of Order XLIV to effectively hear the Government Pleader as well, which has not been done in this case.

In the alternative, Mr. Vedantachari relies upon the ratio in Sri Kothandaramaswami Temple and Another Vs. Veezhinatha Ayyar and Another, . He contends that in the instant case a deliberate attempt was made to avoid a proper and full disclosure of the assets of the Appellant even at the first stage when permission to institute the appeal as a pauper was sought for. According to the learned Counsel, the Appellant did not reveal that he had an interest in several movable and immovable properties of the family, We have already seen that the Court below, who was functioning as a delegate of this Court, found as a fact, that the Appellant was not possessed of the immovable properties referred to by the Respondent and that the movable properties such as the funds with the Estates Abolition Tribunal and other funds referred to by the Respondent, were not available to him. It did not believe that the Appellant was possessed of any other independent funds, movable or immovable. In those circumstances, it declared the Appellant as a pauper. It is now settled that the factors to be considered in a situation like the above are whether the applicant had reason to believe, and actually did believe, that the so-called assets stated to be available with him were not indeed available as utilise-assets. It is in this perspective that the bona fides of the individual has to be tested and not on a priori considerations. Vide Karumuthu Thiagaraja Chettiar, Madurai Vs. Commr. of Income Tax, Madras, Under Order XXXIII Rule 1 a person is a pauper when he is not possessed of sufficient means to enable him to pay the Court-fee prescribed by law. The possession referred to is not possession simplicitor or entitlement thereto in the abstract, but it should be capable of being an asset over which he has dominion and he is in praesenti in a position to raise funds thereon to pay the requisite Court-fee. See Ponnuswami Pillai v. Venkata rama Chetty (1961) 2 M.L.J. 243. Thus it should be a realisable asset in the hands of the applicant. This marked distinction between entitlement to property and possessed of means has to be borne in mind, while deciding the question whether a person is a pauper or not. Mere semblance of title, without actual possession and immediate vested right to deal with it and raise funds thereon, would not do. Even if the case of the Respondent were to be accepted, it is a case where the Appellant might be said to have an interest in properties other than the subject-matter of the appeal, but it has been found, as a fact, that the Appellant has no present right to raise funds thereon because of the involved litigation surrounding it and the heavy indebtedness of his father who is also a member of the joint family. Therefore, we are of the view that the Appellant is not possessed of sufficient means to pay Court-fee.

The other incidental question is whether the Appellant has deliberately suppressed the facts and is, therefore, disentitled to sue as a pauper. The ratio in Chellammal Vs. Muthulakshmi Ammal, is that utmost good faith is required of the Petitioner in the matter of the disclosure of his or her assets and any intentional departure from good faith, whatever may be the motive, must result in the dismissal of the petition. We have referred to this aspect earlier. If a person reasonably, and prudently entertains the belief that some assets of the family, which he is not possessed of, are not within his reach and are not, therefore available, then its non-disclosure cannot be said to be such that his conduct is lacking in utmost good faith, nor. can it be conjectured that there was any intentional departure from good faith. It follows, therefore, that the conduct of the Appellant which is sought to be impugned by the Respondent cannot reasonably be said to be vexatious or improper even within the meaning of Order XXXIII, Rule 9 and the Appellant''s application for leave to file the appeal in forma pauperis ought not to be rejected