M/s Jiwan Metal Industries and another vs Syndicate Bank

A.L. Bahri, J.—This revision petition is directed against the order dated 27th January, 1987 passed by the Additional District Judge, Narnaul, dismissing the application of the petitioners, filed under Order 44, Rule 1, Code of Civil Procedure.

Syndicate Bank filed a suit for the recovery of Rs. 6,23,069.61 against Jiwan Metal Industries and another. This suit was decreed by the trial Court on 28th February, 1985. An appeal was preferred by Jiwan Metal Industries and another along with the application under Order 44, Rule 1, Code of Civil Procedure. In this application it was stated that the present petitioners were not possessing the means to pay the requisite Court-fee leviable on the appeal, amounting to Rs. 29,370/-. The lower appellate Court called for the report of the Tehsildar and thereafter afforded opportunities to the parties to lead evidence.

Mr. Jaswant Jain, Advocate, counsel for the petitioners, has argued that in view of the material produced before the lower appellate Court it could not be held that the present petitioners had means to pay the requisite Court-fee. The application of the petitioners was, therefore, wrongly declined by the lower appellate Court. Mr. Jain has taken me through the report of the Tehsildar as well as the statement of A.W. 1 Parma Nand Jain. On going through the evidence referred to above it transpires that the loan was taken by the present petitioners from the Syndicate Bank. The factory was mortgaged and certain machinery and goods lying in the factory were hypothecated. The report of the Tehsildar shows that outside the factory were four shops one was vacant and the other three were with tenants. Total rent which was received by the petitioner was stated to be Rs. 460/-. While appearing as A.W. 1 Parma Nand Jain did not say anything about the shops but made a general statement about his means that he was unable to pay the Court-fee.

Shri Jaswant Jain, Advocate, counsel for the petitioners, has referred to Order 33, Rule 1, Explanation 1, Code of Civil Procedure, which reads as under:-

Explanation 1. - A person is an indigent person,

(a) 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, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

The contention of Shri Jaswant Jain it that since the petitioners are not possessed of sufficient means and the factory which has been mortgaged with the Bank or a residential house, which is exempt and is to be ignored from consideration, the present petitioners should be considered to be indigent persons. On the other hand, Mr. Ajai Lamba, Advocate, counsel for the respondents has argued that four shops mentioned in the report of the Tehsildar do not form part of the factory which was mortgaged with the Bank, and the petitioners concealed this fact and they are in a position to pay the Court-fee after the disposal of these shops. I have given due consideration to these arguments. As far as the factory in dispute is concerned, that is the subject matter of the suit, the factory is not to be taken into consideration for determining the means of the petitioners to pay Court-fee Likewise, the residential house situated in this factory, which is exempt from attachment u/s 60(ccc) of the Code of Civil Procedure, is also not to be taken into consideration Apart from the above properties, there are four shops of the petitioners, as has come in the report of the Tehsildar. From three shops, there is rental income. That income per se may not be sufficient as has been argued on behalf of the petitioners, to pay requisite Court-fee on the appeal before the lower appellate Court. However, there is nothing on the record to suggest that if these shops are sold, the sale proceeds would be insufficient to pay Court-fee on the said appeal. Parma Nand, one of the plaintiffs, appeared as A.W. 1 and he did not make any reference to these shops. The facts that the shops were owned by the plaintiffs was concealed from the Court in the application filed under Order 44, Rule 1, Civil Procedure Code. While dismissing the revision petition, the impugned order is affirmed. The petitioners are allowed two months time to pay requisite Court-fee on the appeal in the lower appellate Court.