ORDER
H.N. Narayan, J.
1. This matter coming on for admission today, it is heard and disposed of by this order.
2. This revision is directed against the order of the Trial Court rejecting the application of the petitioners-appellants filed under Order 44 Rule 1 CPC read with Section 151 CPC requesting the Trial Court to treat them as indigent persons and permit them to file the appeal in information pauperis.
3. Facts of this case in brief are as follows: The first respondent - Bank has obtained a money decree for recovery of Rs. 14,000/-against which an appeal is preferred by the petitioners. They have filed an application under Order 44 Rule 1 CPC read with Section 151 CPC seeking permission of the Court to prosecute the appeal as indigent persons.
The second petitioner has filed an affidavit swearing to the fact that all the appellants are poor agriculturists and they have no definite source of income for their livelihood. The second petitioner owns 1 acre 25 guntas of land and his mother i.e. the first petitioner also owns 1 acre 25 guntas of land. These lands are dry lands. They are not getting crops regularly. The income derived from the lands are not sufficient for their livelihood. Under those circumstances, they requested the Court below to permit them to prosecute the appeal as indigent persons and exempt them from paying the court fee. The second petitioner has tendered his evidence in support of his application. The first respondent - Bank has not protested this application. The learned Government Pleader did not appear inspite of notice and failed to file statement of objection.
The learned Trial Judge having regard to the provisions of order 33 and 44 CPC and upon consideration of the evidence of PW-1 i.e. the second petitioner has rejected the application. The legality and correctness of this order is questioned by the LR's of the first appellant Sri Chunchaiah.
4. Sri R.B. Sadasivappa, learned Counsel for the petitioners, relying upon the decision in PRABHAT vs. SANTHOSH KUMARI, AIR 1983 All P 40, submitted that notwithstanding the technicalities, the Trial Court should have considered the material on record either to allow the application or to reject it. Therefore, the Trial Court has failed to exercise its jurisdiction while rejecting the application. His further submission is that the evidence of PW-1 i.e. the second petitioner clearly shows that himself and his mother owned small bits of dry lands and have no income to pay the Court fee in the appeal.
5. I find little substance in these contentions.
6. Application under Order 44 Rule 1 CPC has necessarily to be filed in conformity with provisions of Order 33 Rule 2 CPC which provides that 'every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for signing and verification of pleadings'. Rule 5 of Order 33 CPC provides for rejecting an application filed under Order 33 Rule 3 CPC which specifically states that the Courts shall reject the application for permission to sue as an indigent person:
a) Where it is not framed and presented in the manner prescribed by rules 2 and 3;
b) Where the applicant is not an indigent person;
c) x x x x
d) x x x x
Therefore, a person who seeks a remedy or relief under Order 33 Rule 1 has to make an application containing all the particulars contemplated under Rule 2 of Order 33 and he shall present the same in person in accordance with the provisions of Rule 3.
7. Let me now consider the contentions raised by the learned Counsel for the petitioners. The learned Counsel for the petitioners has relied upon the decision of the Allahabad High Court referred to supra. The Allahabad High Court has not at all referred to the provisions of Order 33 Rule 2 CPC. I have no dispute over the view expressed by the Allahabad High Court. Courts have to administer substantial justice to the parties who come to the Courts for redressal of their grievance not withstanding the technicalities of the procedure, The compliance of provisions of Order 33 Rule 2 is not a mere empty formality which the party is required to follow. The said provision is mandatory in nature. Therefore, the provisions of Rule 5 of Order 33 CPC clearly enumerates the rejection of such application for non-compliance of any one of the grounds stated therein. The requirement of law for verification of pleading / application under the signature of a party has its own solemnity.
8. The requirement under Order 33 Rule 2 CPC are that an applicant has to furnish the particulars of both the movables and the immovables belonging to the applicant with an estimated value thereof and the particulars furnished therein require verification. This requirement is to prima facie know whether the applicant owns any immovable or movable property except his wearing apparels and whether he is incapable of paying the Court fee. The facts involved in Allahabad High Court admittedly discloses that an applicant did not own any movable or immovable property and therefore, having regard to that circumstance that Court held that the technicalities of the procedure should not be allowed to interfere in the flow of justice if there has been substantial compliance of rules and procedure (emphasis supplied), which is absent in the case on hand.
9. Therefore, it follows that the mandatory provisions of Order 33 Rule 1 CPC cannot be subverted on the ground of technicalities. It is mandatory for a party to strictly comply with those provisions.
10. Coming to the facts on hand, it is not disputed that the applicant has not furnished the particulars in conformity with Order 33 Rule 2 CPC. He has not verified the application. He has not furnished whether he owns movable or immovable property. In the absence of these particulars as required under Order 33 Rule 2 CPC, the Trial Court has rejected the application on that ground.
11. On the merits of the case, it is admitted case of the second petitioner, that his mother i.e. the first petitioner and himself together owned 3 acres 10 guntas of land. They raised bank loan specifically for the purpose of improving the agricultural land. There is no evidence as to the nature of improvement made on the land, the crops grown, and the income derived from the said lands. PW-1 has not specifically stated the value of the land in his possession and the income they derived from the land. In the case of RADHAKRISHNA vs. KUNHAPPA, 1969(2) KLJ 220 this Court held 'that possession means possession of sufficient property or control over them'. This is not a case where the lands did not fetch any value. The petitioners in this case have failed to place satisfactory evidence before the Court to show that they are incapable of paying the Court fee inspite of possessing an immovable property. It cannot be stated under these circumstances that a person who owns immovable property has no means to pay the Court fee at all. There may be cases and cases where a party may allow his immovable property to lay fallow or barren and plead that his property does not bring him any income. A party who owns valuable piece of urban land may yet plead his inability to pay Court fee on the ground that it does not bring him regular income and it is only a liability. Those grounds are unacceptable to the Court. Therefore, I find that the petitioners have miserably failed to show that they have no means to pay the Court fee.
12. The Trial Judge has considered this material placed before him and have rightly rejected the application on both grounds. I am satisfied that the Trial Court has properly exercised it jurisdiction. There is no material irregularity in the order and I hardly find any material or ground to entertain this revision. Hence this revision fails and it is dismissed without being admitted.
13. The petitioners are permitted to pay the required Court fee within six weeks.