Thilagammal vs Elango alias Chinnappayyan and Another

Srinivasan, J.—This Civil Miscellaneous Appeal is against an order rejecting an application filed by the appellant under Order 33, Rule 1 of

the CPC for permission to file a suit as a suit as a person in indigent circumstances. The suit is filed by the appellant against her husband who is the

first defendant and an alienee from him, the second defendant for recovery of maintenance and for payment of amounts for clothing and residence.

The amounts claimed in the petition relate to maintenance, both past and future. The Court below dismissed the application on the ground that the

petitioner has suppressed relevant materials and that she has not come to Court in good faith in filing the application for permission to file the suit as

an indigent person. He has relied upon certain documents produced by the respondents and also the case of the respondents that the petitioner

was doing tailoring business and earning a sum of Rs. 300 p.m.

When the appeal was taken up for hearing, learned Counsel for the respondents raised a preliminary objection that the appeal would not lie in

this Court as the value of the proposed suit is less than Rs. 30,000 and it should be filed only in the District Court. But, I find from the certified

copy of the petition that the suit has been valued at Rs. 36,000 and odd. According to learned Counsel for the respondents, the valuation of the

amounts claimed as due for clothing and residence for a period of three years prior to the filing of the suit at Rs. 3,000 and Rs. 3,600 having been

calculated at the rate of five times the amounts actually claimed in the proceedings is erroneous. According to learned Counsel, the value of the

claim for the past should have been made only u/s 22 of the Court-Fee Act as it is a claim for money. Therefore, the value should have been at the

amount actually claimed. Learned Counsel further states that even with regard to the future, the claim for clothing and residence cannot be treated

as a claim for annuity and it should be treated as a claim for maintenance and, therefore, the appellant is wrong in valuing the same at five times the

amount claimed per annum. Even if the first part of the contention that for the past, the claim should be treated as a claim for money and the value

of the proceedings should be fixed at the amount actually claimed for the past three years is accepted, the value of the two claims at Rs. 3,000 and

Rs. 3.600 respectively would be erroneous and the correct value would be only Rs. 600 and Rs. 720 respectively. Even then the value of the suit

is more than Rs. 30,000. However, the contention with regard to future that the claim cannot be treated as one for annuity and it should be treated

as only one for maintenance, cannot be gone into at this stage. The respondents did not raise any objection as to the valuation of the claim in the

Court below. The only contest was with reference to the capacity of the appellant to pay the court fee due. For the purpose of fixing the forum of

appeal, the value mentioned in the petition in the Court below which remained unchallenged is the only relevant factor. This proposition can be

culled out from the decision of Full Bench of this Court in Putta Kannayya Chetti and 2 Ors. v. Rudrabhatta Venkata Narasayya ILR 40 Mad. 1.

It was held that the amount or value of the subject matter as fixed in the plaint should determine the Court to which the appeal lies. In view of that

decision, the contention urged by learned Counsel for respondents in this regard cannot be accepted.

Learned Counsel for the respondents relies upon the decision in Neelamma v. Narappa 70 M.L.J. 128, for the proposition that the claim for

clothing and residence would fall only under maintenance and it cannot be treated as annuity as it is not based on a grant. The decision cited does

not lay down any such proposition of law. As I have stated earlier, that question cannot be decided at this stage for determining the forum of

appeal.

Learned Counsel invites my attention to Section 5.4 of the Court-Fees and Suits Valuation Act and contends that the objection as to valuation

could be raised even in the appellate Court. Section 54 of the Court-Fees and Suits Valuation Act relates to an objection that by reason of over-

valuation or under-valuation of a suit of appeal, a Court of first instance or lower appellate Court which had no jurisdiction with respect to the suit

or appeal exercised jurisdiction. That section will not apply to a case in which the objection is raised in the appellate Court with regard to the forum

of appeal. If the objection raised by the respondents is that the Court below had no jurisdiction to deal with the subject matter of the proceeding,

then Section 54 of the Court-Fees and Suits Valuation Act could have been relied on by learned Counsel for the respondents. Learned Counsel

for the respondents states that he relies upon Clause (b) of the Section 54 of the Court-Fees and Suits Valuation Act. Section 54 of the Court fees

and Suits Valuation Act states that an objection with regard to jurisdiction of the Court below on the basis of over-valuation or under-valuation can

be raised in the appellate Court, unless (a) the objection was taken in the Court of the first instance at or before the hearing at which issues were

first framed and recorded, or in the lower appellate Court in the memorandum of appeal to that court, or (b) the appellate Court is satisfied, for

reasons to e recorded by it in writing, that the suit or appeal was over-valued, or under-valued and that the over-valuation or under-valuation

thereof has prejudicially affected the disposal of the suit or appeal on its merits. This will relate only to the jurisdiction of the trial Court or the lower

appellate Court and not the jurisdiction of the Court before which the appeal is pending. This Section cannot help the respondents to contend that

the forum of appeal is different from this Court, in this matter. As the value exceeds Rs. 30,000, the appeal will lie only in this Court.

Learned Counsel proceeded to argue on the merits and submitted that in the evidence the appellant had admitted that she had obtained loans

from Indian Overseas Bank and that she had not disclosed the same in her petition. Learned Counsel relies upon the following passage in the

deposition of the appellants as P.W.1.

The passage extracted above shows that there is no admission on the part of the appellant that at the time when she filed proceeding in the

Court below she was in possession of sufficient funds or that she was having a source of income which would enable her to pay the Court fee. She

had categorically stated that the loans she obtained from the Bank had already been spent partly and partly repaid. As regards the sewing machine,

she had stated that she already sold it and repaid the loan with the aid of sale proceeds and that out of sale proceeds of the sewing machine, she

spent Rs. 1,500 for her medical expenses when she was admitted in the Christian Medical College Hospital, Vellore.

Learned Counsel for the respondents states that Ex.B.2 to B.4 prove that the appellant was in possession of funds as she had obtained loans

even in the years 1984 and 1985 which she had not disclosed in her application. There is no record before me to show that the appellant had

obtained loan even in the years 1984 and 1985. Ex.B.2 were not put to the appellant when she was in the witness box. Even the evidence of the

first respondent as R.W.1 would only show that Ex.B.2 to B.4 were filed to prove that the appellant had obtained loans three times from Indian

Overseas bank and that she had already repaid the same. That is the clear evidence of R.W.1. On the basis of that evidence, it cannot be

contended by learned Counsel for the respondents that the appellant was in possession of funds which she had obtained by way of loan from

Indian Overseas Bank at the time when she instituted the proceedings before the Court below.

Even the lower Court had not relied upon Ex.B-2 to B-4 to hold that the appellant had obtained loans in the years 1984 and 1985 and that she

was in possession of sufficient funds to pay the Court fee out of the loans obtained from the Bank. The Court below has chosen to state towards

the end of its order that it is the case of the respondents that the petitioner was doing cut-piece business and earning Rs. 300 p.m., but has not

given any categorical finding that it had accepted the evidence adduced by R.W.1. or that the appellant was doing business and was having

independent earning. Even if the earning was Rs. 300 p.m., that would not be sufficient to pay the Court fee of Rs. 3,000 and odd payable in this

case.

It is contended that the appellant had not disclosed the relevant materials and that the petitioner was guilty of suppression of facts and the

absence of good faith would compel the Court to dismiss the application filed by her for permission to file the suit in forma pauperis.

Learned Counsel placed reliance on Rajakumar Bhagwatsaran Vs. V.P.V. Rajan and Others, . It is held in that case that utmost good faith is

expected on the part of the applicants and that, motive for suppression is irrelevant. It is also pointed out that there is no use contending that having

regard to the large amount of Court-fees that has to be paid, suppression of Rs. 300 p.m., would not make any differences.

On the facts of the case, I am of the opinion that there is no suppression whatever on the part of the appellant with regard to material facts. I

am satisfied that she had no source of income to pay the Court fee or sufficient means to pay the Court-fee at the time when she filed the

application in the Court below. There was no necessity for her to disclose the loans obtained and discharged long prior to the suit. In the

circumstances, the order of the Court below is vitiated on the facts of the case. The order of the Court below is set aside and the Civil

Miscellaneous Appeal is allowed. The first respondent shall pay costs to the appellant in this appeal.