Smt. S. Kamalamma vs Dr. R.K. Sulochana

B.S. Patil

The petitioner has filed two civil petitions in C.P.No.165/2010 and 180/2010 seeking permission to file the appeals as indigent person. The petitioner intends to prefer two regular second appeals challenging the judgment and decree passed in R.A.Nos. 14/2008 and 17/2008, disposed of on 30.06.2010 by the I Addl. Senior Civil Judge, Chitradurga.

The petitioner has suffered a decree whereunder the Courts below have found that the petitioner is liable to pay a sum of Rs. 32,000/- along with 18% interest from the date of transaction till the date of the suit and at the rate of 6% from the date of decree till the amount is realized.

The Civil Petition was filed on 18.11.2010 interalia contending that the petitioner did not own any movable or immovable property and she had no source of income to pay the Court fee and that she was residing in the house of her daughter depending on her for her livelihood.

4 She further contended that though she tried to raise the loan to pay the Court fee, she was unable to mobilize the funds for paying the Court fee. Therefore, she has filed the petition to prosecute as indigent person.

The respondent-plaintiff has filed objections and resisted the matter.

This Court by order dated 26.08.2011 passed in the connected Civil Petition bearing No. 165/2010 directed the learned Government Advocate to secure a report from the concerned revenue authorities with regard to the indigence of the petitioner. Accordingly, the learned Government Advocate has secured a report from the Tahsildar, which is filed along with a memo.

In the report submitted by the revenue authorities, it is stated that the husband of the petitioner, late Thippa Naika owned three house properties within the vicinity of Chitradurga Municipal Council. The particulars of the properties furnished by the revenue authorities as per the report are as under:-

Property bearing No. 8860/7491/4339

Property bearing No. 8860/A 7491/A

Property bearing No. 8860/B 7491/B

He has enclosed the assessment extract, which gives the description of these properties. The assessment extract discloses that the properties consist of ground and first floor and the same stands in the name of late. Thippa Naika, husband of the petitioner. The petitioner has not disclosed these facts in her Civil Petition. It is now sought to be contended by the petitioner by filing the objection to the report of the Tahsildar that the property left behind by her husband is in the occupation of her son and that she is excluded, from enjoying the same.

Such contentions of the petitioner cannot be accepted. The report of the Tahsildar discloses that some portion of the premises is given on rent and rent was being realized. The fact that the petitioner has suppressed these material facts pertaining to the existence of the premises within the city limits of Chitradurga, portion of which had been given on lease itself disentitles the petitioner for the relief.

The learned counsel for the petitioner places reliance on the Judgment of this Court in the case of Shivarudrappa and Another Vs. Chinnayallappa and Another, and contends that mere title to property with no dominion thereon does not amount to possession of "sufficient means", in terms of the provision contained under Order 33 Rule 1. This judgment has no application to the facts of the present case as the petitioner has totally suppressed the fact that the property situated within the City Municipal limits of Chitradurga, is left behind by her husband. Moreover, the Tahsildar''s report discloses that the property is fetching income as the same has been leased out. Only after the report was submitted by the Tahsildar, truth has emerged which discloses that the petitioner has become the joint owner of the property situated at Chitradurga along with her son. The report of the Tahsildar further reveals that the property is earning monthly rent. If that is so, the petitioner cannot be treated as an indigent person unable to pay the Court fee.

Hence, both the petitions are dismissed.