Full Judgment
ANIL K. NARENDRAN & P.G.AJITHKUMAR, JJ. ----------------------------------------------------- R.F.A.No.49 of 2022 ----------------------------------------------------- Dated this the 25th day of August, 2022
ORDER
Ajithkumar, J.
C.M.C.P.No.10 of 2022 The appellant filed this petition under Order XXXIII, Rule 1 of the Code of Civil Procedure, 1908, seeking leave to file the appeal as an indigent person. The appeal is filed against the
judgment and decree is O.S.No.17 of 2018 on the file of the
Principal Sub Court, Kottayam. The suit was filed by the respondent seeking a decree of declaration, injunction and partition. The suit was decreed as per the judgment dated 30.10.2021. The sole defendant in the suit is the appellant, who is aggrieved by the said decree. To appeal, he has pay court fees of Rs.4,75,250/-. The petitioner, contending that he is not in a position to remit such an amount towards court fees, has filed this petition.
2. The petitioner contends that only property he owns is
the property involved in the appeal. He has wife and three daughters, who are all jobless. He has no income whatsoever. In the circumstances, he is unable to pay the court fees.
3. The respondent has filed a counter affidavit. He
would contend that the petitioner has suppressed the facts
thereby misled the court. In the suit, item Nos.1 and 2 properties alone are involved; whereas it is stated that all the three items are subject matter of the suit. The third item of the property, which has an area of 63.48 Ares, is worth more than Rs.18 lakhs in the year 2013. There is sufficient income for the petitioner to remit court fees. Thus the respondent maintains that the petition is liable only to be dismissed.
4. A report from the District Collector, Kottayam, was
called for. The learned Government Pleader as per memo dated 13.07.2022 placed on record the report of the District Collector. In the report, it is stated that the petitioner owns three items of property and that he does not have any income. It is, however, reported that his daughter has an yearly income of Rs.2,40,000/-. Taking into account the fact that the petitioner is a cancer patient, the Collector has reported that he is not capable of remitting the court fees.
5. Heard the learned counsel appearing for the petitioner, the learned counsel appearing for the respondent and also the learned Government Pleader.
6. In Jagadamma v. Sheela and another [2021
(3) KLT 347] a Division Bench of this Court explained what shall be the criteria for deciding the question of sufficient means,- “22. The expression "sufficient means" occurring in
Order XXXIII R.1 of the Code is very much significant.
The Code consciously does not use the expression "without any means". Ability or wherewithal of the applicant to raise money sufficient to pay the requisite court fee is the point to be enquired into. As observed in some decisions, having "sufficient means" refers to possession of enough properties from which money sufficient to pay the requisite court - fee could be realized. One need not be in abject poverty to be
qualified as an indigent person envisioned under Order
XXXIII, Rule 1 of the Code.”
7. In Paulose @ Paulo v. Elias K.Varghese and
another [2012 (1) KLT 754], this Court considered who can be said to be a person without sufficient means in the context of Order XXXIII, Rule 1 of the Code. It was held,-
“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 whether he is capable of raising the court fee in normal circumstances. The Code uses the expression 'sufficient means', i.e. “means” sufficient to pay court fee after meeting the basic requirements of life. Total destitution is no prerequisite to seek justice. If he does not have sufficient means to pay court fee, justice shall not be denied to him. The benefit is conferred on persons without 'sufficient means' and not without any means at all. Pauperism is not a pre-requisite for leave to sue as an indigent person. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property which the court has to look into. Possession of 'sufficient means' refers to possession of sufficient realisable property which will enable the plaintiff to pay the court fee. Possession of hard cash sufficient enough to pay the court fee is not a prerequisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay the court fee. Even one who is entitled to or possessed of property cannot be for that reason alone
held to be having sufficient means. Even though
sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of 'sufficient means' should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that is yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court fee cannot be taken into account in calculating sufficient means.”
8. In the light of the principles of law laid down in the
aforesaid decisions, it cannot be said that a person in abject poverty alone can be granted permission to sue as an indigent person. What is to be shown before the court is that he is a person not able to raise enough funds for making payment of the court fees in the present circumstances.
9. The learned counsel appearing for the respondent
would contend that the property covered by Annexure R1 belongs to the petitioner and it is not a subject matter of the suit. As per the provisions of Order XXXIII, Rule 1 of the Code, only the properties which are the subject matter of the suit alone are excluded, and therefore, the petitioner can deal with item No.3 property which is worth Rs.18 lakhs as per the valuation in 2013 itself, cannot be said to be an indigent person. It is further contended that the petitioner falsely stated that all the properties were subject matter of the suit.
10. What is stated in the affidavit by the petitioner is
that he has only three items of property mentioned in the plaint. It is true that the relief was claimed only in respect of two items of property alone, but all the three items were mentioned in the plaint. In that view of the matter, the third item cannot come within the exclusion clause in the Explanation to Rule 1 Order XXXIII of the Code. However, it cannot be said that there was any suppression of facts by the petitioner.
11. Even though it is contended that the petitioner has
enough income from the property in his possession, there is nothing on record to substantiate the same. Going by the report of the District Collector, the petitioner does not have enough source of income to make payment of the court fees due on the appeal. There is nothing on record to show that the report is incorrect. It is possible for the petitioner to sell the third item of the property and raise funds in order to make payment of the court fees. But that cannot be termed as means immediately available to the petitioner. If there is no material to show that the petitioner is presently deriving enough income or has in possession of assets that can easily be liquidated into money, it is only justice and proper to allow the petitioner to appeal as an indigent.
In the circumstances, we allow this C.M.C.P. List for admission on 16.09.2022. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr