Meenambal vs Selvi Baby and Others

Jegadeesan, J.—The petitioner who is the first respondent in O.P. No. 36 of 1990 on the file of the Sub Court, Poonamallee, has filed the

revision against the order of permitting the first respondent herein to file the suit for partition as an indigent person. The first respondent herein has

stated in the original petition filed in support of the petition seeking leave to file the suit as in forma pauper is that she does not possess any property

except the utensils and wearing apparels. The petitioner herein has filed the counter in the said petition stating that the first respondent is earning a

monthly income of Rs. 1,500 and moreover she has income from side jobs also, and she has also constructed her own house in Mugappair village,

which is worth above Rs. 3 lakhs and she is also getting a monthly rental income of Rs. 500 per month from the house property. Further in the

counter it has been stated that the first respondent is residing with one Dhanalakshmi, who is also one of the respondents in the main original

petition and the said Dhanalakshmi is earning a monthly income of Rs. 2,000 and as such both of them can join together and pay the court-fees.

The first respondent herein had been examined as a witness before the trial court. In the course of the evidence she had stated that she was

working in a printing press at Kodambakkam for the past one year and she stopped from going to the said work. In the next sentence she has

stated that she is doing the composing work in the press.

The trial court after considering the evidence and the materials available on record allowed the petition filed under Order 33, Rules 1 and 2 of

CPC and permitted the first respondent to file the suit as an indigent person. The petitioner has challenged the order in the present revision. The

counsel for the petitioner contended that the first respondent in her evidence had admitted that she is working as a composer in the printing press

and she may be able to get Rs. 350 per month. Further it is contended that the first respondent in her evidence stated that she was working one

year prior to the date of giving evidence and so even her version that she was working one year ago is accepted, she ought to have given the

details of the monthly income in her petition as she gave her evidence on 20.2.1992 and the one year earlier would come to January, 1991,

whereas the original petition had been filed in September, 1989. So, on the date of filing the original petition she was working and getting the

salary. This fact has not been disclosed in the original petition filed by the first respondent and on the short ground of suppression of material facts

the lower court ought to have rejected the petition for permission to sue as indigent person. The learned Counsel for the respondents submitted that

the first respondent in her evidence has categorically stated that she was working in the printing press at Kodambakkam prior to one year and after

that that she is not working anywhere and the sentence that she is working in the press as a composer is only mistake and that instead of stating the

past-tense the first respondent has used the present tense, which changed the meaning of the sentence and further the amount which alleged to have

been suppressed will not come anywhere near the court-fee that has to be paid.

This Court in the judgment reported in P.V. Abubucker v. Madhava Panicker, 1982 T.L.N.J. 431 elaborately discussed the requirements of

Order 33, Rule 2 of CPC and the consequential failure to comply with the same. Ultimately, the learned Judge held that each case has to be

considered on the facts and it should be found out as to whether the person seeking leave to sue as indigent person has acted almost bona fide in

the matter of disclosure of his or her assessment and any intentional departure from good faith, whatever the motive might be, must attract the

consequence of a dismissal of the petition. The question of bona fides has to be determined with reference to the facts of each case. Where the

petitioner is a literate and knowledgeable person and has also knowledge and experience of court matters, then the standard of test for determining

the bona fides should be more rigid than in the case of an illiterate and rustic person, who has no knowledge and experience of courts and litigation.

The learned Judge further held as follows:

In the instant case, the first respondent has not given any reason for non-disclosure of the admitted item of asset viz., the salary for management of

the cinema theatre. He could not have forgotten this item of asset when he prepared the list of his assets. The non-disclosure would, therefore,

amount to an intentional suppression of assets and this must inevitably lead to the rejection of the application.

Though the counsel for the first respondent contends that one sentence in the evidence that she was doing the composing work is a mistake is not

able to give any explanation as to why the first respondent had failed to mention the sum of Rs. 350 which she was receiving on the date of filing

the plaint. The only explanation given by him is that, that amount may not be sufficient for paying the court-fees.

A Division Bench of this Court in Rajakumar Bhagwatsaran Vs. V.P.V. Rajan and Others, , has held as follows:

We are of the same view, utmost good faith as held in Chellammal v. Muthulakshmi, ILR 1945 Mad. 628, is expected on the part of the applicants

who seek leave to sue informa pauperis. Motive for suppression is irrelevant. It is no use contending that having regard to the large amount of

court-fee that has to be paid suppression of Rs. 300 per mensem would not make any difference. The point, as we said, is one of good faith and

not whether in view of the large amount of court-fee the appellant who is shown to be in good faith making the application without full details would

be unable to pay court-fee.

Taking into consideration the principles as laid down in the above judgment, if the facts of the present case is considered, it is admitted that the first

respondent has not mentioned the amount of Rs. 350 which she was receiving as salary on the date of filing the suit and there is no explanation on

her part in her evidence as to why she did not state that fact in her original petition. In the absence of any explanation, it is not possible to find out

the bona fides of the petitioner and hence it has to be held that the first respondent had suppressed the fact of receiving a sum of Rs. 350 per

month by way of salary on the date of filing the original petition.

Following the above cited judgment, I am of the view that the petitioner in this revision has to succeed and accordingly, the revision is allowed.

No costs. The first respondent is given eight weeks time to pay the court-fees.