Sadanandan vs Prabhakaran and Another

Janaki Amma, J.—The Petitioner is the Respondent in O.P. 38 of 1974; filed by the present Respondent for permission to sue in forma pauperis. The claim is for realisation of Rs. 16, 116 with future interest. The case of the Respondent is that he paid the above amount to the present Petitioner as the purchase price for the car KLQ, 5877. The Petitioner took away the car and also did not pay back the amount. The Petitioner in his objections to the petition denied his liability and also contended that the petition was liable to be dismissed both on the ground that it was not in the proper form and on the ground that the Respondent was not a pauper. According to the Petitioner, the Respondent was possessed of an item of property having an extent of 30 cents which is worth Rs. 300 per cent. He did not disclose the above property in the petition filed by him. Nor did he disclose the fact that he is getting a monthly salary as a Government employee. The trial court overruled the objection and allowed the petition. The above order is challenged in this revision petition.

It would appear that during the course of the examination of the Respondent, he mentioned that the item of property which he was possessed of was sold away in January 1973, that he is receiving a monthly salary as a Government employee and is a subscriber to the Provident Fund scheme. According to the Petitioner, it was incumbent on the Respondent to have produced the document of sale and he should have convinced the court that he is no longer the owner of the item.

The petition was filed in 1974 and it was disposed of on 12th March 1976. The Respondent''s case from the very start was that he was not possessed of any property. His evidence also has not disclosed that he was in possession of any property within two months before the presentation of the application. There are no materials to show, as matters now stand, that he disposed of any property fraudulently in order to be able to apply for permission to sue as pauper. If the Petitioner had any case that the Respondent was possessed of property, it was upto him to have taken steps sufficiently early to prove that case. In the absence of such steps, the non-production of the sale deed by the Respondent is not a circumstance for holding that he was possessed of property during the relevant period.

The next contention put forward on behalf of the Petitioner is that the Respondent did not comply with the directions contained in order XXXIII, Rule 2 of the CPC in that he did not mention that he was getting a salary from the Government and also that he has got the Provident Fund to this credit. Order XXXIII, Rule 2, CPC reads:

Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

There is no case for the Petitioner that a schedule is not attached to the petition. The case is only that all the assets have not been mentioned therein. According to the Respondent, he was not possessed of any property on the date of the petition. Though it is admitted by him that he is getting a salary of Rs. 308 per month after making deductions, his case is that the above amount is being spent by him for maintaining himself and his family, and that he has not saved anything therefrom except the compulsory deposit.

As regards Provident Fund, the case put forward is that it is not an amount which he is possessed of at present or an amount which he is free to handle for payment of court-fee in the suit.

A number of rulings have been cited by the Petitioner to show that the petition should be dismissed for non-conformity with the provisions of Order XXXIII, Rule 2, CPC The uniform principle recognised by all the High Courts is that a person who applies for leave to sue in forma pauperis should act in good faith and any intentional non-disclosure of assets would entail the dismissal of the application. See Chellammal v. Muthulakshmi AIR 1945 Mad 296 Maharaj Bali and Another Vs. Mt. Tirath Dei and Others, Ramakrishna Chetti v. Govindammal AIR 1954 Mad 537 Ghanshyam Dass Rastogi Vs. A.N. Syal and Another, Chaoba Singh v. Sajou Singh AIR 1964 Gau 31 and Parekh Ramniklal Gordhandas Vs. Jaisval Mathurlal Shankerlal and Others, . In Rajinder Singh v. Karnal, Central Co-operative Bank AIR 1965 P&H 331 the Petitioners did not disclose the whole of their assets and no cogent explanation was given at the Bar as to why the provision of law had not been complied with. The petition was accordingly dismissed. In Harisingh Isharsingh Vs. Chandansingh Pratapsingh and Another, the Petitioner had 1/4th share in land measuring 78 acres in Punjab and the value thereof was, according to the Respondent, Rs. 2,655 whereas the court-fee payable was Rs. 925. The question arose as to whether the above property should be taken into account as it was the only means of livelihood for himself and his family. The court held that the property was not exempt from attachment and that it was not liable to be excluded in considering the means of the Petitioner for the purpose of Order XXXIII, Rule 1, Code of Civil Procedure

Order XXXIII, Rule 2, CPC has been the subject-matter of a recent ruling of this Court in Kunjuraman v. The United India Fire and General Insurance Co. Ltd. Madras and Ors. 1976 KLT 620. In that case, the petition was dismissed on the ground that the Petitioner did not disclose all the items of property that he was possessed of. It had come out during the cross-examination of the Petitioner that he was possessed of furniture, the value of which was estimated to be Rs. 500. The non-disclosure of this was taken as a ground for dismissal of the petition. This court, however held that there was no deliberate omission on the part of the Petitioner. The value of the property, even if taken into account, would not be sufficient for payment of court-fee which amounted to Rs. 4,783.

There is no dispute that the relevant date for deciding whether the Petitioner is entitled to sue in forma pauperis is the date of presentation of the petition. It is not made out that on that date the Respondent was possessed of immovable property or that he had saved sufficient cash from out of his salary to enable him to pay the court-fee. The fact that he would be receiving his monthly emoluments in future need not be considered for the purpose of the case. Therefore, the omission to mention any cash by way of assets is not fatal to the petition. Nor can it be said to have been done in bad faith.

The further question is whether the non-mention of the Provident Fund is a circumstance which should be taken into account in disposing of the application. The case put forward on behalf of the Respondent is that the Provident Fund amount even if allowed to be withdrawn will not be sufficient for payment of the court-fee. His further case is that he omitted to mention the amount because he bona fide thought that he need not mention it because he was not in possession thereof. The revision Petitioner would, however, place reliance on the decision on Maheswar Misra v. Messrs. Hindusthan Steel Ltd. ILR 1966 Cut 80. The Respondent in that case contended that the suppression of the Provident Fund amount due to the Petitioner was sufficient reason for dismissal of the petition to sue in forma pauperis. The court held that the non-disclosure of the Provident Fund amount was deliberate and without bona fides and that the dismissal of the petition under such circumstances was justifiable. The facts of the case, however, disclose that under the rules relating to the Provident Fund in that case, the Petitioner could have withdrawn amounts for expenses of litigation. On the other hand, in Ramakrishna Chetti v. Govindammal AIR 1954 Mad 537 the Madras High Court accepted the explanation of the Petitioner that he bona fide believed that the funds were intended as a provision for his dependents.

It is well-known that rules regarding Provident Fund vary among different institutions. Restrictions put on the withdrawal of the amount in the case of a Government employee may not exist in the case of an employee under a private company. In the instant case, it is the admitted case that the Respondent herein is governed by the General Provident Fund (Kerala) Rules. The rules provide for advances from Provident Fund and also for non-refundable withdrawals therefrom for specified purposes. Withdrawal for purposes of payment of court-fee for a suit to be instituted by an employee does not prima facie appear to be a permissible item of withdrawal under the rules. It is not made out that the Petitioner had sufficient control over the amount as to make it available for payment of court-fee or that the omission to mention the amount in the schedule was deliberate and without bona fides. It is also not made out that the amount standing to the credit of the Petitioner, even if allowed to be withdrawn, would be sufficient to pay court-fee in the instant case. In the circumstances noted above, the order passed by the trial court appears to be correct and does not call for interference. The revision petition is accordingly dismissed. There will be no order as to costs.