Thilagammal vs Elango and Another

Srinivasan, J.—This civil miscellaneous appeal is against an order rejecting an application filed by the appellant under Order 33, Rule 1,

C.P.C. for permission to file 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 had 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 per month.

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. 3000 and Rs. 3600 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-fees Act, as it is a claim for money. Therefore, the value should have been at the

amount actually claimed. Learned counsel further stated 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 suit 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 too claims at Rs. 3000/- 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 a Full Bench of this Court in Putta Kannayya Chetti v. Rudrapatta Venkatanarasayya ILR 40 Mad 1: AIR

1918 Mad 998 (2). It was held therein 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 (Bingi) Neelamma Vs. Agadi Mareppa, 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 54 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 undervaluation of a suit or 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

respondent states that he relies upon Clause (b) of 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 overvaluation or undervaluation can be raised

in the appellate Court, but it shall not be entertained in the appellate Court unless (a) the objection was taken in the court of 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 be recorded by it in writing, that the suit or appeal was overvalued or undervalued and that the

overvaluation 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 "" appellant 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 the 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, 1500/- for her medical expenses when she was admitted in the Christian Medical College Hospital, Vellore.

Learned counsel for the respondents states that Exs. 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. Exs. B. 2 to B. 4 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 Exs. 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 Exs. 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 loan 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. 200 per month, 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 per month that would not be sufficient to pay the court fee of Rs. 3000/- 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 possession 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-fee that has to be paid, suppression of Rs. 300 per'' month would not make any difference.

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.