Yogesh Kumar vs Begraj

Alok Singh, J.—Present petition is filed by the petitioner-appellant, challenging the order dated 10.06.2010 passed by the learned District Judge, Narnaul, thereby rejecting the application of the petitioner-appellant under Order 44 Rule 1 C.P.C., seeking permission to file the appeal as an indigent person.

The report was called by the learned District Judge from the revenue authority. The patwari, vide his report dated 20.08.2009, has reported that the applicant is residing with his parents. It has further been reported that the applicant has no agricultural land in the Village, however, financial position of the applicant is good.

Learned Counsel for the petitioner - appellant argued that it has not been reported that applicant is gainfully employed somewhere. Learned Counsel for the petitioner states that the applicant is unemployed and has no source of income. He further states that house in which petitioner is residing is an ancestral house. Learned Counsel for the petitioner placed reliance on the judgment passed by the Division Bench of this Court in the case of State of Haryana and Anr. v. Baldev Raj and Anr., reported in 2008 (4) P.L.R. 204.

Perusal of the report of the Patwari does not suggest that the applicant is gainfully employed or has any other movable or immovable property in his possession. The only conclusion on the report of the Patwari is that the applicant is residing in residential house with his parents.

A Division Bench of this Court in the matter of Baldev Raj (supra), after examining Section 60 C.P.C. as amended (as applicable in the State of Haryana), has held in paragraph Nos. 5 and 6 as under:

The aforementioned provision is self-explanatory and a perusal thereof shows that the houses and other buildings with the materials and the sites thereof, are not liable to attachment or sale in execution of a decree. Therefore, the aforementioned property owned by the applicant-respondent No. 1 can also not be taken into account for determining the issue as to whether he is an indigent person. The error is, thus, apparent on the fact of the order. Therefore, the review application deserved to be accepted.

In view of the above, the review application is allowed. Order dated 11.1.2007 allowing the revision petition bearing C.R. No. 6465 of 2005 is hereby set aside and that of the trial Court, dated 23.8.2005 is restored. It is accordingly held that the petitioner is entitled to sue in forma paupers as an indigent person.

In view of the dictum of law laid down by this Court in the matter of Baldev Raj�s (supra), I find that applicant cannot be said having capacity to pay court fee merely because he is having only residential house which cannot be attached in execution of the decree. There is no other material on record to show that applicant is able to pay the court fee. If the applicant is unemployed and has no source of income or any other movable or immovable property, the permission should be granted to the applicant to file an appeal as an indigent person as required Order 44, Rule 1 C.P.C.

Petition is allowed. The impugned order dated 10.06.2010 is quashed. The petitioner - appellant is permitted to file an appeal in forma paupers as an indigent person.