Suresh Kumar T vs Babu Philip

P.G. Ajithkumar, J

This appeal under Order XLIII, Rule 1(na) of the Code of Civil Procedure, 1908 was filed by the plaintiff in O.S.No.92 of 2018 on the file of the Additional Sub Court, Kottayam. He filed I.A.No.909 of 2018 in the suit, invoking the provisions of Order XXXIII, Rule 1 of the Code, seeking exemption from making payment of the balance court fees. The petition was dismissed as per the order dated 04.03.2022 and that order is under challenge in this appeal.

On 01.04.2022, notice on admission was directed to be issued to the respondents. The 1st respondent has entered his appearance through his learned counsel.

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1st respondent and also the learned Government Pleader.

The appellant instituted a suit by paying 1/10th of the court fees due to be paid. Total court fees to be paid in O.S.No.92 of 2018 was Rs.8,20,950/-, of which Rs.82,095/- was paid under Section 4(A) of the Kerala Court Fees and Suits Valuation Act, 1959 at the time of institution of the suit. He ought to pay the balance court fees on settlement of issues. The appellant, however, filed I.A.No.909 of 2018 contending that he was unable to make payment of such a huge amount of court fees since he has no sufficient means or property, from which he could raise funds for such payment. On such grounds, he sought to allow him to prosecute the suit as an indigent person.

The 1st respondent filed a counter statement refuting the contentions of the appellant. It was contended that recently the appellant paid Rs.1,56,840/- as court fees in another suit. He is involved in real estate business, garnering an income of Rs.1,50,000/- every month. The marriage of his daughter was solemnized in a luxurious manner, spending a huge amount. He has suppressed details about his movable and immovable properties. He fraudulently entered into the alleged agreement with the respondent. He sold one of his immovable properties recently. Thus, the 1st respondent contended that the appellant was not a person of penury, but he has the capacity to pay the court fees.

The learned Sub Judge recorded oral testimony of the appellant as PW1. A report from the Tahsildar, Eranad Taluk, Manjeri was also obtained. On the basis of the evidence on record and after hearing both sides, the learned Sub Judge found that the appellant was not an indigent entitling exemption from making payment of the court fees.

The learned counsel for the appellant would submit that there was absolutely no evidence before the court below that the appellant has any kind of means but on the basis of surmises, the court entered into a finding that he had sufficient means to make payment of the court fees.

The learned counsel appearing for the 1st respondent, on the other hand, submitted that the appellant suppressed the real facts regarding his income and the properties owned by him, both movable and immovable, and therefore, he is not entitled to have the privilege of suing without making payment of the court fees. The learned counsel appearing for the 1st respondent on making reliance on Mathew v. State of Kerala [1996 (2) KLT 363], Mini James v. T.I.George and others [2018 (5) KHC 744] and Jagadamma v. Sheela and another [2021 (3) KHC 167] contended that in the light of suppression of material facts by the appellant, he was not entitled to get leave to prosecute the case as an indigent person.

In Palakkil Puthiyamaliyekkal Abdul Razak v. P.K.Saleem [2018 (5) KHC 336], a Division Bench of this Court after referring to the principle laid down in Mathai M.Paikeday v. C.K.Antony [(2011) 13 SCC 174] held that,

“12. xx xx xx All the factors such as person's employment status and the total income, including retirement benefits in the form of pension, ownership of realisable unencumbered assets and person's total indebtedness and financial assistance received from the family member or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee. Therefore, the expression 'sufficient means' in Order XXXIII, Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee. The factors particularly relevant to the determination of whether a party to a civil proceedings is indigent are: (1) the party's employment status and income, including income from government sources, such as social security and unemployment benefits; (2) the ownership of any unencumbered assets, including real or personal property and monies on deposit; and finally (3) the party's total indebtedness and any financial assistance received from family or close friends. Where two people are living together and functioning as a single economic unit, whether married, related, or otherwise, consideration of their combined financial assets may be warranted for the purpose of determining a party's indigency status in a civil proceedings.”

In Jagadamma v. Sheela and another [2021 (3) KLT 347] another Division Bench of this Court explained what shall be the criteria for deciding the question of sufficient means,-

“22. The expression "sufficient means" occurring in Order XXXIII R.1 of the Code is very much significant. The Code consciously does not use the expression "without any means". Ability or wherewithal of the applicant to raise money sufficient to pay the requisite court fee is the point to be enquired into. As observed in some decisions, having "sufficient means" refers to possession of enough properties from which money sufficient to pay the requisite court - fee could be realized. One need not be in abject poverty to be qualified as an indigent person envisioned under Order XXXIII, Rule 1 of the Code.”

In Paulose @ Paulo v. Elias K.Varghese and another [2012 (1) KLT 754], this Court considered who can be said to be a person without sufficient means in the context of Order XXXIII, Rule 1 of the Code. It was held,-

“It refers not to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain whether he is capable of raising the court fee in normal circumstances. The Code uses the expression 'sufficient means', i.e. “means” sufficient to pay court fee after meeting the basic requirements of life. Total destitution is no prerequisite to seek justice. If he does not have sufficient means to pay court fee, justice shall not be denied to him. The benefit is conferred on persons without 'sufficient means' and not without any means at all. Pauperism is not a pre-requisite for leave to sue as an indigent person. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property which the court has to look into. Possession of 'sufficient means' refers to possession of sufficient realisable property which will enable the plaintiff to pay the court fee. Possession of hard cash sufficient enough to pay the court fee is not a prerequisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay the court fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. Even though sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of 'sufficient means' should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that is yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court fee cannot be taken into account in calculating sufficient means.”

In the light of the principles of law laid down in the aforesaid decisions, it cannot be said that a person in abject poverty alone can be granted permission to sue as an indigent person. What is to be shown before the court is that he is a person not able to raise enough funds for making payment of the court fees in the present circumstances.

The view of the Apex Court with respect to the approach that has to be taken while considering the rival contentions of the parties in litigations was expressed in Commissioner of Income Tax, W.B.-II, Calcutta v. Durga Prasad More [AIR 1971 SC 2439] and Sumati Dayal v. Commissioner of Income Tax Bangalore [AIR 1995 SC 2109]. In Commissioner of Income Tax it was held that “the Courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliability of the piece of evidence. In Sumati Dayal the Apex Court was considering the question of whether the assessee could claim exemption regarding income he claimed to have obtained by winning a jackpot ticket in horse racing. There was an allegation that the assessee made manipulation in the purchase of tickets with the objective of conversion of black money into while income. In that context, the Apex Court observed that the matter has to be considered in the light of human probabilities and inference about such a purchase has to be drawn on the basis of the circumstances available on the record.

Keeping those principles in mind, we may consider the facts in this case as are borne out from the materials on record. The appellant contended that he did not have any immovable property and no income. He has scheduled a few dress items alone as his belongings now. The respondent refuted the said contention and maintained that recently he had sold an item of property, he has paid court fees of Rs.1,56,840/- in another suit, namely, O.S.No.41 of 2019, and that he has been generating an income of Rs.1,50,000/- every month from real estate business. Another contention raised was that the marriage of his daughter was conducted in a luxurious manner, which would show that he has enough money with him.

The respondents did not point out that the appellant now owns any immovable property. A report from the Tahsildar, Ernad Taluk, Manjeri was called for by the court below. The report was that the appellant did not have any immovable property. Regarding the property said to have been sold by him, the appellant explained that in order to discharge debt incurred on account of the solemnization of the marriage of his daughter, he had to sell the property in the year 2018. His explanation is that that sale was for generating funds as he availed loan to meet the expenses of the marriage of his daughter. There is nothing on record to show that in such a sale, he obtained any surplus amount that could be used to remit the balance court fees. As regards the contention that he has been generating income from the real estate business, his version is that following the transaction in question, he became penniless and he is not in a position to do any real estate business. He is therefore not getting any income now.

It is an admitted fact that the appellant had paid court fees in O.S.No.41 of 2019. He explained that he availed of loans from others to pay the said amount of court fees. The court fees to be paid in this suit, i.e., O.S.No.92 of 2018, being a huge amount of nearly Rs.7.5 lakhs, he is unable to generate the required money. From the said evidence, what comes out is that the appellant has no income or property from which he can generate funds in order to make payment of the court fees remaining to be paid in O.S.No.92 of 2018.

The learned counsel appearing for the 1st respondent contended that the appellant approached the court not with bona fides, and therefore, his application for permission to sue as indigent is liable to be rejected. In that regard, the learned counsel placed reliance on Mini James (supra), wherein it was held that if the applicant suppressed any fact which has a bearing on the question regarding his indigency, the petition entails rejection. In Mathew (supra) this Court has considered the effect of suppression of a material fact by the applicant, who sought permission to sue as an indigent person. It was held that when an applicant does not disclose an asset held by him in his application, whatever be the reason, on the wording of Rule 3 of Order XXXIII of the Code, it is clear that the application is liable to be rejected, in terms of Rule 5A of Order XXXIII. Thus, the law on the point is clear that any suppression of material fact by the applicant will tell upon his bona fides and for that reason his application is liable to be rejected.

During the course of arguments, the learned counsel appearing for the 1st respondent pointed out that the appellant maintains bank accounts and is an income tax assessee, but no such details are furnished before the court while filing the application. The learned counsel appearing for the appellant submitted that the details of his bank accounts were not furnished and to that extent there was suppression of fact. He further, on instructions, submitted that although he held savings bank accounts with Co-operative Bank owing to his default in making payment of loan amounts, the accounts were frozen and thus there is practically no live bank account for him. Even if his accounts were frozen, it was his obligation to furnish details of the bank accounts before the court. The question however is whether suppression of such a fact would necessarily result in disallowing the application. Going by the decision of this Court in Mathew and Mini James referred to supra, suppression of the assets held by the applicant, even if there is justification, would tell upon the bona fides of the applicant. If a material fact having bearing on the bonafides of the applicant is suppressed also the application entails rejection.

Here there is no such non-disclosure. The details of the bank accounts were not furnished before the court, but that is justified. In the absence of any material on record; even from the report of the Tahsildar, Eranad, that the appellant has any deposit in the bank, non-disclosure of details regarding his accounts cannot be a reason sufficient to disallow the application.

As  held  in  Commissioner  of  Income  Tax  and Sumati Dayal referred to supra, materials came on record are to be considered in the light of human probabilities. The appellant, who filed a suit for getting back Rs.65 lakhs said to have been paid to the respondents, claims that he is now unable to pay the court fees. Ordinarily the inference shall be that he has ability to pay the court fee amounting to about Rs.7.5 lakhs. But when he furnished evidence before the court that, now, he has not been able to generate funds so as to make payment of such an amount and there is nothing in evidence to show that he possesses any immovable property or movables of considerable value, it has to be held that he is a person having no sufficient means to pay the court fees. The explanation furnished by him regarding payment of court fees in O.S.No.41 of 2019 also appears to be genuine. In the said circumstances, we are of the view that the finding of the court below is wrong.

Hence, the appeal is allowed and the impugned order dated 04.03.2022 in I.A.No.909 of 2018 in O.S.No.92 of 2018 of the Additional Sub Court, Kottayam, is set aside. I.A.No.909 of 2018 stands allowed.