Seetha Mathew and Others vs S. Raveendran

M.R. Hariharan Nair, J.—The Plaintiffs in O.S. No. 1501/93 of the Sub Court, Thiruvananthapuram are aggrieved by the common order passed in I.A. Nos. 4490 and 4451/99 in the said suit, the effect of which is to dispauper of the Plaintiff.

The suit is for recovery of damages to the tune of Rs. 10,00,000 arising from the death of the former husband of the 1st Plaintiff who was the son of the third Plaintiff. The 2nd Plaintiff in the suit is a minor represented by the 1st Plaintiff. The total Court fee payable in the suit is Rs. 73,300 and it was therefore that the Plaintiffs sought permission to sue as indigent persona. After due enquiry, the request was allowed and that was why the suit was registered in the year 1993.

The suit came up for evidence in the year 1999. Plaintiffs gave evidence. From the answers given in cross-examination the learned Sub Judge felt that the status claimed by the Plaintiffs was inadmissible for them. The 6th Defendant also filed I.A. No. 4490/99 seeking to dispauper the Plaintiffs under Order 33, Rule 9 of the Code of Civil Procedure. The Additional Government Pleader who was dealing with forest matters also filed I.A. No. 4451/99 for the same relief. The impugned order was passed allowing the said request. The permission granted by the Court earlier was withdrawn as per the impugned order.

Mr. K. Ramachandran who argued the case of the revision Petitioners, submitted that the impugned orders are defective for the reason that they were not passed after due enquiry. No opportunity was given for filing counter to the petitions and there was no opportunity for adducing evidence also. On the other hand, the Court below proceeded based on certain admissions contained in the evidence of the Plaintiffs when they deposed during trial in support of their case on the merits of the plaint claim. The learned Counsel also submitted that the original order granting them the status of indigent persons could have been revoked only after due enquiry as contemplated in Order 33, Rule 9 of the CPC and that the impugned order does not fulfil the requirements of law.

The Respondents have been served; but they have not chosen to enter appearance in the case.

A suit is allowed to be instituted ''in forma pauper is'' only after meeting certain requirements of law. The Petitioners have to establish that they are indigent persons as defined in Order 33, Rule 1 of the CPC Rule 1A of Order 33 directs an enquiry to be made into the means of an indigent person. Under Rule 4 the Petitioner may be examined. Rule 5 contemplates rejection of application where the applicant is not an indigent person or where his allegations do not show a cause of action or for other valid reasons enumerated in Rule 5. Under Rule 6 there has to be notification of a day for receiving evidence of the applicant with regard to the indigency. It is only after following the said requirements of law that an application is admitted and the Petitioners are allowed to sue as indigent persons. In the instant case, such an order was passed on 30th November 1993. At that time itself it had been noticcd by the Court that the 1st Petitioner was getting a monthly salary of Rs. 1,800 and that the 3rd Petitioner was getting a monthly pension of Rs. 1008. It is pointed out by the learned Counsel for the revision Petitioners that the very appointment of the 1st Petitioner was taking into consideration the death of her husband and under the dying-in-harness scheme. The question is whether the benefit to sue ''in forma pauperis'' granted after taking into account all the above aspects can be lightly withdrawn.

Under Order 33, Rule 9 of the CPC the Court may, on the application of the Defendent or of the Government Pleader, of which 7 days'' clear notice in writing has been given to the Plaintiff, order the Plaintiff to be dispaupered: (a) if he is guilty of vexatious or improper conduct in the course of the suit; (b) if it appears that his means are such that he ought not to continue to sue as an indigent person; or (c) if he has entered into any agreement with reference to the subject matter of the suit under which any other person has obtained an interest in such subject matter.

What has already been granted to the Plaintiffs in the suit is temporary immunity from payment of Court fee. It is a valuable right of the party and it follows as a corollary that a proceeding to establish that the Plaintiffs are disentitled for the benefit is one in which he is vitally interested. Such a drastic step can be taken only after due enquiry with opportunity to the Plaintiffs to show cause against the proposal.

It may be that after the institution of the suit the salary of the 1st Plaintiff or the pension of the 3rd Plaintiff might have increased. Even if they have some income from which they can meet their hand to mouth existence, that will not deprive them of their right to continue the suit. The question that would arise in an enquiry under Order 33, Rule 9 of the CPC on the facts of this case would be whether the Plaintiffs have acquired sufficient financial competence to shelve out a sum of Rs. 73,300 towards Court fees.

It is well settled by decisions that sufficient means for the purpose of Order 33, Rule 9 of the CPC would be means sufficient to pay Court fee, after meeting the basic requirements of life and that total destitution is not a pre-requisite to seek the benefit. It is not necessary that a person should alienate all his possessions, and seek justice and penury at once. The Courts are bound to ensure that the cause of a litigant does not fail merely because of a genuine incapacity to pay the requisite Court fee. Xavier v. Kuriakose 1987 (1) KLT 176.

It was found in Jayaraja Menon v. Rajakrishnan 1997 (1) KLT 813 that the Court need not postpone the collection of the Court fee in the case of a dispaupered Plaintiff until the suit itself is tried.

In the instant case, the suit is still pending though collection of evidence is almost over. The trial Court can definitely pass an order under Order 33, Rule 9 of the CPC before disposal of the suit itself; but that can be done only after proper enquiry as contemplated by law and not merely based on impressions gathered from the evidence collected on the merits of the case during trial and without opportunity to the Plaintiff to show cause against the contentions of the Defendants. On a perusal of the impugned order it is clear that it has been passed without adequate opportunity to the Plaintiffs to meet the contentions of the 6th Defendant and the Govt. Pleader. The impugned order is hence defective.

The Revision Petitions are therefore allowed and the impugned orders are set aside. The matter is remitted to the Principal Sub Court, Thiruvananthapuram with a direction to afford an oppoituniiy to the Plaintiffs to file their counter to the petitions in question followed by adequate opportunity to adduce evidence for both sides in support of their respective contentions. The petitions will be disposed of taking into account the spirit and purpose of Order 33, Rule 9 of the CPC through a speaking order and in accordance with law. The final disposal of the suit has to be only after the disposal of the petitions mentioned in the impugned orders.