Rajinder Singh and Others vs The Karnal Central Co-Operative Bank Limited and Others

Dua, J.—This revision is directed against the order of a learned Subordinate Judge 1st Class, Kamal, rejecting the plaintiffs'' applicable under Order 33, Rule 1, Code of Civil Procedure, for permission to see as a (sic).

The plaintiffs-petitioners are the minor sons of Suraj Bhan and applied to sue as paupers lor a declaration that the alienations mentioned in the plaint made by their father were ineffective, unenforceable and not binding on the plaintiffs because they along with their father constituted a joint Hindu family. In paragraph 14 of the plaint, it has also been pleaded that "Suraj Bhan was a spendthrift, debauch and accustomed to heavy drinking and he made ail the alienations for the said illegal purposes and got entered into the transfer-deeds bogus a mourns of consideration." it has further been averred that the successive alienations were made within a very short period and this in spite of the fact that he had a sufficient income and cash to live a decent life.

The learned Subordinate judge has in his order observed that the plaintiffs have not led any evidence to establish the market value of the properties which have been mortgaged by their father and the witnesses produced by them have also faded to state their market value. On the contrary, contesting defendants have led cadence to show that the properties are worth considerable amounts, According to the statement of Ranjit Singh, one property is worth Rs. 40,000/- and another Rs. 13,000/- and still two other properties ere worth Rs. 12,000/- and Rs. 13,000/- respectively. From this evidence. the Court has inferred that the plaintiffs have perhaps deliberately with held from the Court the valuation of the mortgaged properties. The heirs of the vendor, according to the learned Subordinate Judge, are in a position to raise money on the mortgaged properties as they are still legal owners thereof and, therefore, in a position to pay court-fee. I may here point out that Suraj Bhan vender has also since died and after his death the plaint has been suitably amended by the plaintiffs. The result, therefore, is that the plaintiffs are also the owners of the equity of redemption and it is on this basis that the Court below has made the observations mentioned above. The Court below has further proceeded, to observe that the deceased vendor was possessed of many immovable properties from which one may infer that he had also sufficient movable properties. The plaintiffs have not disclosed to where the movable properties of the deceased have gone. (The word "immovable" in this connection apparently is a typing mistake.) In the schedule filed with the petition the plaintiffs have only disclosed to be possessed of some utensils and clothes worth about Rs. 40/- or Rs. 50/- and this assertion has not impressed the Court below to be correct. The plaintiffs were thus held not to be paupers. The Court has also proceeded to observe that the petition for permission to sue as a pauper was defective inasmuch as the properties of which they are the owners have not been included in the Schedule filed alongwith the petition. The provisions of Order 33, C. P. C, have, therefore, not been complied with. The petition, as already observed, was disallowed.

On revision in this Court, the learned counsel for the petitioners has, to begin with, submitted that no notice was issued by the Court below to the Government Pleader as required by Rule 6 of Order 33, C. P. C, and. therefore, the entire, proceedings in the Court below are vitiated Support for this contention has been sought from some reported decisions, the greatest reliance being placed on a decision of the Judicial Commissioner of Kutch in Trikamji Bhanji etc. v. Hiralal etc. It has been observed there that the irregularity of failure to give notice to the Government Pleader vitiates all proceedings and with this observation the order of the Additional District Judge permitting the plaintiff to sue in forma pauperis was set aside. Reference has also been made to Noni Krishna Basak Vs. Nabamonjuri Dassi, , where it is observed that where a Munsif disposed of an application for leave to sue as a pauper without taking such evidence as the opposite party had offered before the Court and without notice to the opposite party and the Government, the Court acted without jurisdiction in dealing with the pauper application and a revision lay. In my opinion, if, as in the Calcutta case, the evidence offered by the opposite party is not taken and also notice is not given to the opposite party and the Government, the order would clearly be liable to be struck down on revision. The observations in Ketch case, in my opinion, go a bit too far and, as at present advised, they have not commended themselves to me and I speak with all respect to the learned judicial Commissioner, In the case in hand, however this question, as pointed out on behalf of the respondents, does not a rise because notice was apparently given to the State and there seems to be on the record a report from the Sub-Divisional Officer, Kaithal, that the plaintiffs own a haveli valued at about Rs. 50,000/-. In any case, the permission having not been granted, failure to give notice to the Government Pleader would in this case not give any cause of action to the plaintiffs to complain on revision in this Court about this failure. A revision, it may be pointed out, is a discretionary remedy and unless the petitioner is aggrieved by a material irregularity committed by the Court below, this Court is not obliged to interfere at his instance. It was open to the plaintiffs petitioners to lead whatever evidence they wanted to and omission to give notice to the Government Pleader did not result in any prejudice to their rights.

The counsel has next contended that all the property being the subject-matter of the dispute, its value must be excluded while considering the means of the plaintiffs petitioners enabling them to pay the court-fee, prescribed by law. This submission is apparently misconceived because the equity of redemption which vests in them in respect of the mortgages challenged in the suit, are obviously not the subject-matter of the controversy. The decisions cited on behalf of the petitioners do not deal with the case like the one at the bar. it is, therefore, unnecessary to deal with this contention at length. Suffice it to say that if the title to the the property is in controversy, then one may reasonably take the view that the plaintiffs are not possessed of sufficient means merely on the basis of the property in controversy being ultimately to be held to belong to them I should like merely to notice the decisions cited. They are: Krishna Bhatia v. Madhaya Bhatta AIR 1962 Kar 24, Bhupendra Kumar Sen v Phani Bhushan Paul AIR 1962 Trip. 22, Mt. Ramnandi Kuer v. Rup Narain Singh and others AIR 1942 Pat 290, and AIR 1933 528 (Lahore) In the last mentioned case it was observed by Tek Chand, J. that where property in dispute over which the petitioner had an equity of redemption was not in his possession and the defendant set up an adverse title having taken up wrongful possession of the same, there was no question of raising money on the equity of redemption and the petitioner could not be deemed to be a man of asset. Clearly, those facts were very much different from the present. In Thanu Pillai and Another Vs. Nellathayammal and Others, , it was held that before a plaintiff can be allowed to sue as a pauper, it should be proved that he cannot raise the money. The ratio of this case is that Court has to consider the concrete circumstances whether the plaintiff could raise anything substantial by exercising their power to dispose of the property. In the case in hand, it is emphasised that the petitioners cannot dispose of this property and raise any money thereon.

On behalf of the respondents, emphasis has been laid on the contention that the petition is not in accordance with law and the while assets having not been included, it has been rightly rejected by the Court below. In support of this contention, reference has been made to Durga Prasad and Another Vs. Sriniwas Sureka and Another, , Subodh Chandra Nag v. K.L. Bank Ltd AIR 1941 Cal. 65, Kehri Singh etc. v. Chunni Lal etc. ILR 33 All. 437, Ltd. Chand v. Mt. Pisto, A.I.R 1928 Lab. 271 and AIR 1940 310 (Lahore) Stress has also been laid on the contention that no revision is competent in the case in hand and for this contention, reliance has been placed by Shri Sarin on Chaube Jagdish Prasad and Another Vs. Ganga Prasad Chaturvedi, and The State of Tripura Vs. The Province of East Bengal,

The contention that in the case in hand, it may not be easy for the plaintiffs petitioners to raise any money on the basis of the equity of redemption on the facts and circumstances of this case is not wholly devoid of merit. To begin with, the petitioners are minors and they are assailing the alienations effected by their father. Under these circumstances, I am not quite sure if it can be held, without there being some supporting evidence, that it is reasonably likely for the minors to raise funds for paying court-fee. I am, however, clearly of the view that the present petition filed by them has been rightly disallowed on the ground that the schedule of movable and immovable property belonging to the plaintiffs petitioners with the estimated value thereof was not annexed with the application. A person who seeks the indulgence of the Court to sue as pauper a vast be absolutely frank with the Court in the matter of disclosure of his assets, for, it is only where there is a genuine case of a pauper as defined in Order 33, Rule 1, Code of Civil Procedure, that the Court can dispense with the payment of court-fee which every citizen is expected to pay. In the case in hand, it is obvious that the petitioners have not been fair and frank in this respect and no cogent explanation has been given at the bar as to why the provision of law requiring a full disclosure of the assets has not been complied with.

And then, it must not be forgotten that the matter is before me on revision and unless I find that the dictates of substantial justice demand interference, I would be disinclined to set aside the order of the Court below which is otherwise within jurisdiction and is not tainted with serious legal infirmity justifying interference on revision. I enquired from the counsel for the petitioners if his clients wanted time to make good court-fee. As he wants time to pay court-fee, I grant him one month from today to make good the court-fee on the plaint.

For the foregoing reasons, this petition fails on the merits except that time is granted as above for making good court-fee on the plaint.