Xavier vs Kuriakose and Others

Sankaran Nair, J.—The Appellant moved the Court below for leave to sue as an indigent person. This was resisted by Respondents l to 4. Leave was refused, and hence the appeal.

The Appellant owns 2.72 cents of land on which stands his residential building. On the reasoning that this is worth Rs. 20,000, the Court below concluded that, ''the application cannot be allowed''. The Court said no more; and considered nothing else. What is germane is whether the Appellant is possessed of ''sufficient means'', to pay Court fee, and not whether he is possessed of any means. An indigent person need not be one bereft of all material possessions of value. Order XXXIII understands an indigent person as:

Explanation I-A person is an indigent person, -(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit''

The Code confers the benefit on persons without ''sufficient means''. 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 if he is capable of raising the Court fee in normal circumstances. A straight jacketed interpretation cannot be made on the language of the rule. The Code uses the expression ''sufficient means'' which is, means sufficient to pay Court fee, after meeting the basic requirements of life. An interpretative process consistent with the Constitutional Directives and philosophy must prevail. Article 39A of the Constitution of India envisages equal justice and free legal aid and the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and ensure "that opportunities are not denied to any citizen by reason of economic or other disabilities". Total destitution is no prerequisite to seek justice. If he has not sufficient means to pay Court fee, justice shall not be denied to him. Innovate we do not; we interpret the rules to achieve the objects behind it and to reach its benefit to those it is intended for.

In Janakykutty v. Varghese 1969 KLT 953, it is stated: "What is contemplated is not possession of property but sufficient means, that is capacity to raise money to pay Court fees."

It is not necessary that a person should alienate all his possessions, and seek justice and penury at once. In Sumathykutty Amma Kamalamma and Others Vs. Narayani Panikkathy Karthiyayani and Others, , this Court has counselled that 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.

Counsel for Respondents 1 to 4 invited our attention to the decision of the Bombay High Court in Harisingh Isharsingh Vs. Chandansingh Pratapsingh and Another, wherein it is held that:

... there is no exemption under order 33, Rule 1, in respect of such property of a person, who wishes to sue in forma pauperis, the income of which is his sole means of livelihood.

We regret our inability to assent to this view. We think that neither the language of Order XXXIII, Rule 1 nor the background in which the question is to be viewed, lend any such inference; besides such a view would defeat the Directive Principles of State Policy contained in Article 39A of the Constitution and drive a suit or to justice to helplessness and keep justice beyond his reach.

We think that the Appellant who has no possession, save his residential house, and who is over 70 with no prospect of earning capacity, is a person without means to pay the requisite Court fee. In this view, the appeal is allowed and the order of the Court below is set aside. We declare that the Appellant is an indigent person. The parties will bear their costs.