Nandganj Sihori Sugar Mills Co.Ltd.And Another vs Badri Nath Dixit

H.N. Tilhari, J.—By this civil revision the revisionists have challenged the order dated 1531993 passed by Civil Judge, Rae Bareli, in Civil Misc. Case No. 117 of 1992, whereby learned Civil Judge has been pleased to exercise its powers under Order 33 of the Code of Civil Procedure and to grant permission to the oppositeparty to file the suit as an indigent person. The present oppositeparty i.e. plaintiff who had moved an application under Order 33 Rule 1 of the Code had sought permission to file the suit claiming damages and compensation to the tune of Rs. 12,17,240.40 under various heads as mentioned in the application under Order 33 of the Code. The plaintiff 5. e. applicant in the application under Order 33 of the Code stated in the plaint that on the total amount of compensation and damages claimed court fee to the tune of Rs. 91,720/was payable and that he has not been possessed of sufficient means which may enable him to pay the court fee on that claim. The applicant had also given a list of the property possessed by him. The list have been annexed as AnnexuresA & B to the application under Order 33 of the Code which in case the application under Order 33 is allowed is deemed to be the plaint of the suit. The trial court examined the applicant and issued a notice to the defendants and thereafter held that in his statement on oath the present oppositeparty i.e. the applicant in the application under Order 33 of the Code deposed that he was not in such financial position which could be said to enable him to pay the requisite court fee on the said claim and that the application under Order 33 of the Code (i.e. present revisionists) asserted that the plaintiff was possessed of telephone facility and a library but they could not produce any material or evidence which could show or prove that the person seeking permission to sue as indigent person was possessed of such sources as would have enabled him to pay court fee and thus considering the statement made before it the learned Civil Judge allowed the application under Order 33 Rule 1 of the Code i.e. present oppositeparty to the revision to be an indigent person and directed the suit to be registered as such.

Feeling aggrieved from the order of the trial court i.e. the learned Civil Judge the defendants Nandganj Sihori Sugar Mills Co. Ltd. has come up in revision as well as U.P. State Sugar Corporation has joined in the filing of the revision under section 115 of the Civil Procedure Code. I have heard Shri P. K. Sinha, learned counsel for the revisionists at length. Shri Sinha submitted that the applicant has wrongly been allowed to sue as an indigent person. In the application it has not been shown by the alleged indigent person that what were the sources of income, livelihood and how he was having his bread and butter or his slices. Shri Sinha made further submission regarding the merits of the suit and submitted that there was no certainty of this claim being successful and it was further submitted that a person claiming damages or compensation to the tune of Rupees twelve lacs'', how can such person claim himself to be an indigent person. He has submitted that earlier to the present litigation there had been a litigation which had gone up to the Supreme Court and in which the plaintiff opposite party has failed. Shri Sinha submitted that such a person who could go upto Supreme Court can he be said to be an indigent person. This is a fact for which judicial notice ought to have been taken by the court below and in not doing so the learned court below committed an illegality and jurisdictional error. Shri Sinha on the question of locus standi to file the revision submitted that if the plaintiff would not have been allowed to sue as an indigent person the defendants would not have been called to face the litigation and the suit which has been filed without paying proper court fee is not maintainable. He submitted that the applicant mentioned in the application under Order 33 of the Code was not really an indigent person and his suit should not have been entertained without paying proper court fee, instead it ought to have been dismissed.

Having given due consideration to the contentions of the learned counsel for the applicantrevisionists. It should be taken note of that in India even today there are many persons who live below poverty line. There are many who are discouraged from availing legal remedies irrespective of the fact that their legal rights are abridged by men having control over financial or economic resources. Such arguments, no doubt, can be advanced in a society based on capitalism and exploitation of the down trodden and poor people.

In our country since before the independence we had taken a vow to establish and to constitute India as a country in which every person shall have a right to live with honour and dignity. We had taken a vow to establish a society for which the constitution has given an assurance that justice economic, political and social shall be secured to all its citizens irrespective of their conditions financial or otherwise. A reference to the preamble of the Constitution may be made as under:

�......to secure to all its citizens; Justice, social economic and political............."

Directive Principles of State Policy have also relevance and I make a reference to the provisions of Articles 39A of the constitution of India. Articles 39A casts a duty on the State to formulate its policies and laws in such a way as it may secure that the legal system is to operate in such a manner that it promotes justice on the basis of equality of opportunity and that none is deprived of opportunities of securing justice nor is anyone denied of the opportunities of securing justice particularly the citizens of India, merely because of disabilities such an economic disabilities or like. This is the basic concept of social justice in the field of law. Article 39 A reads as under:

"39 A. Equal justice and free legal aid,The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."

When we talk of justice a socialistic democratic republic in the country it carries with itself an idea that every citizen shall be provided equal opportunity of life, of work and of obtaining justice social, economic and political and that the doors of justice or the doors of court of justice shall not be closed so far as poor and down trodden are concerned, instead there is a clear direction contained in the Directive Principles of State Policy that it is the duty of the state to see that the system operates in such a manner that it promotes justice on the basis of equal opportunity and to ensure the securing of justice to every one and further that State shall stand against all those elements or all those disabilities that may come as hurdle in the way of the weaker section in getting justice because of their economic or other disabilities. The Directive Principles of State Policies are not mere formal pieces of declarations but are direction and principle for guidance as fundamental basis and have got their value and control in the governance of the country by the instrumentality of the State including the judicial wing (see Shaivya Shukla V. State of U.P. ; 1992 (10) LCD 591 : AIR 1993 All 171 (DB); that Order 33 of the Code is a legislative action in the direction to achieve that goal that persons who are economically weaker or who are not is a position to pay the court fee in order to pursue their claim they should not be deprived of their right to seek their remedy in court simply on account of their economic disabilities and with this view Order 33 of the Code has been introduced and enacted in the Code of Civil Procedure. Keeping these basic factors and principles into consideration one has to approach the problems with justice oriented attitude so as to make available justice to all and interpret the provisions of Order 33 of the Code or the like. The said provisions have got to be interpreted in a manner which may run in consonance with the letter and spirit of the constitutional provisions enshrined in the preamble as well as in Article 39 of the Constitution of India. Order 33 of the Code prescribes a complete procedure to deal with this subject. Order 33 of the Code defines who is an indigent person. Order 33 Rule 1 of the Code reads as under:

"1. Subject to the following provisions, any suit may be instituted by (an indigent person).

Explanation : 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 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.

Explanation II: Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III : Where the plaintiff sues in a representative capacity the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity."

Thus a perusal of explanations indicate that a person may be an indigent person in either of the circumstances mentioned in explanation I if his case is covered by clause (a) then he will definitely be an indigent person or if his case is covered by clause (b) then also he can be said to come within the four corners of the definition of indigent person. Rule 4 of Order 33 of the Code provides that after the application has been presented the court has to examine the applicant and Rule 5 provides for rejection of application in either of circumstances mentioned therein but if the court does not find any of the reasons mentioned in Rule 5 on the basis of which the application could be rejected Rule 6 provides that a notice shall be given thereof to the oppositeparty and the Government Pleader receiving such evidence of the applicant as he may adduce in proof of indigency and for hearing any evidence which may be adduced in disproof thereof. Finally, Rule 7 of Order 33 of the Code provides for hearing and then Rule 8 provides that if the application is granted the suit is to be numbered and is to be deemed the plaint in the suit and the suit is to proceed in other respects as a suit instituted in ordinary manner. There is further provision for withdrawal of permission at a subsequent or later stage i.e. Rule 9. Rule 10 deals with and provides for costs of the suit i.e. in case suit succeeds the amount of courtfees which would have been paid by the plaintiff if he had not been allowed to sue as an indigent person; such amount shall be recoverable by the State Government from the defendant and in case the suit is lost the provision is made under Rule 11 Thus there are provisions and complete code in this regard. The order passed by the court rejecting the application under Order 33 Rule 1 of the Code has been made appeal able under Order 43 Rule 1 (na). The legislature has made the order passed on an application under Order 33 allowing a person to sue as an indigent person appealable. A reading of the scheme of these provisions perse shows that the legislature while enacting various provisions considered the dispute relating to court fee and the question whether a person should be allowed to sue as an indigent person, without paying court fee, after the court concerned had passed an order to be a matter in between the plaintiff and the State or the indigent person and the State and that the defendant according to the scheme appears not to have been considered to have any locus standi to raise such matter at later stage and that is why the legislature has not provided for any appeal from the order granting an application for being allowed to sue as pauper or indigent person though refusing to grant permission to sue as an indigent or pauper has been made appealable at the instance of the person who is an indigent if he has been wrongly deprived, the legislature has thought it fit that he may be allowed to file appeal. Thus considering this aspect of the matter I come to the conclusion that when application for granting permission to file the suit as an indigent person has been allowed and one has been allowed to sue as indigent person the idea appears to be that later one who is weaker or who is unable to pay the necessary court fee be allowed to agitate his right in the court of law, the court fee may be realised from him not then but subsequently there is procedure to deal with it if the suit fails, under Order 33 Rule 11 of the Code but why the person should be deprived of the liberty of opportunity of seeking justice from the court of law merely because of economic disabilities. This being the position, the question arises whether it is open to a defendant to file a revision from such an order under section 115 of the Code of Civil Procedure and whether the defendant is entitled to file the revision in order to create obstruction in the way of a person who has been found indigent in the matter of securing relief, the law has got to be interpreted in the context of the constitutional provisions as have been referred to above.

In the case of Sri Rathnavarmaraja Vs. Smt. Vimla reported in (AIR 1961 SC 1299) their Lordships of the Supreme Court have been pleased to observe as under:

"The Courtfees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging courtfee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate courtfee on his plaint. Whether proper courtfee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequency of the courtfee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under S. 115 of the Code of the Civil Procedure is strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusel to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper courtfee has been paid by the plaintiff has still no right to move the superior court by appeal or in revision against the order adjudging payment of courtfee payable on the plaint."

In view of the above observation of their Lordships of the Supreme Court as well as in view of the principles of law enshrined in the Constitution and the spirit of law working behind the enactment of Order 33 of the Code. in my opinion, the defendants after the stage of the trial court''s holding a person to be indigent person and entitled to grant of permission to file the suit, have no right to file a revision under section 115 of the Code as no prejudice is caused to them thereby. Secondly, finding on the question that a person is pauper and indigent person is ordinarily a finding of fact based on appreciation of evidence and the said finding is not open to challenge in revision under section 115 of the Code of Civil Procedure until and unless it is shown that such finding has been arrived at by misapplication of the principles of law or after having ignored the certain relevant material evidence or the same is based on some inadmissible evidence. That is not in the present case as no such error has been indicated or shown.

Thus considered in my opinion, the revision is devoid of force and is hereby dismissed.

Revision dismissed.