SHIVARUDRAPPA Vs. CHLNNAYALLAPPA

JUDGEMENT

(1.) THIS revision petition under Section 115 of the CPC arises from the judgment and order dated 27-8-1993 passed by Sri A. M. Bennur, Civil judge, Arsikere, in Miscellaneous Appeal No. 1 of 1993 arising from the judgment and order dated 8-1-1993 passed by the Munsiff, Arsikere, in miscellaneous Petition No. 25 of 1990 dismissing the appeal and affirming the order of the Trial Court, rejecting the applicants' application under Order 43, Rule l (na) of the CPC.

(2.) THE facts of the case in nutshell are that the petitioners- applicants filed a suit for recovery of a sum of Rs. 38,113/- with application for being allowed to sue in the form of pauperis as 'they have no money to pay the necessary Court-fee' and sought permission to institute the suit as indigent persons. The plaintiffs-revision petitioners stated that they had no movable or immovable properties of their own from which they could pay the Court-fee amount nor they are in a position to get any loan from the persons of the locality. Petitioners alleged that they are seeking out their livelihood as coolies. The respondents appeared before the Trial court and they denied the allegations made by the petitioners in application under Order 33, Rule 1 and they asserted that the petitioners are in a well off position to pay the necessary Court-fee of Rs. 3,815/- and petitioners have been in possession of both movable and immovable properties and they also alleged that no real cause of action has arisen for filing of the suit. The Trial Court dismissed the application holding that petitioners and petitioners' family have got sufficient immovable properties and in every case they are in possession of a cultivatory land and so they were not indigent persons. On appeal being filed, the lower appellate Court dismissed the appeal and it observed that the evidence clearly discloses that the petitioners' family have got a worth value property and at least they are in possession of agricultural lands in Sy. No. 27/5 and 27/6p. It has found that the family of the petitioner and his brothers is joint in food, worship and estate and there is no such division of the properties. On this basis, it held that the petitioners have got substantial property of worth value to pay Court-fee and as such, petitioners cannot be held to be indigent persons under Order 33, Rule 1 and on that basis, the Trial Court rejected the application and the Appellate court dismissed the appeal. Feeling aggrieved by the order of the two courts below, as referred to above, the plaintiffs-applicants have come up before this Court by way of revision under Section 115 of the CPC.

(3.) THE learned Counsel for the revision petitioners Smt. Veena O. Mahesh submitted that the Court below acted illegally as well as with material irregularity in holding that the petitioners are not indigent persons simply on the ground that the petitioners and family of petitioner 1 jointly as members of joint family are possessed of agriculture plots and that therefore they cannot be held to be indigent persons. Learned Counsel contended that the question is not of possession of property simpliciter, but the question was whether the applicant has been possessed of sufficient means to enable the applicant to pay the prescribed Court-fee. Learned Counsel contended that to be mere possessing the property is not enough. The Court below has to consider whether on the basis of that property he can fetch money to pay Courtfee, whether petitioner could sell or mortgage that property and could fetch money to pay Court-fee. Learned Counsel contended to this aspect of the matter, the Court below did not apply its mind while it has been essential for the Court to consider it. Learned Counsel contended as observed by the Court below also the property is joint family property, the question is whether the petitioner could transfer any plot by himself, whether selling of source of earning i. e. , agricultural plot will have the effect of depriving the revision petitioner and his brothers of the basic source of income from the land, whether it is the intention of the Legislature that in such a case, he has to be forced to sell the property from which he is earning his livelihood and lead the life of a begger on the road. If not, by the mere possession of the property can it be said that the petitioner is having sufficient means to pay the Court-fee and is not an indigent person. Learned Counsel contended that the provisions of law have to be interpreted keeping in view the basic scheme of the constitution and one of the basic principles of Constitution is, learned counsel contended, that no person should be deprived of justice and legal remedies or course of justice merely on account of economic or other disabilities. Learned Counsel contended that the provisions under order 33 have to be looked into in this background. The Court below, as such, has not applied their mind to the question of sufficient means to enable the petitioner to pay the Court-fee. The most important thing that has to be looked into is the question whether the applicant has been possessed of sufficient means to enable him to pay the Court-fee prescribed. The Court has only looked to the question and held that the applicant is possessed with some property without looking to the question whether he could or can transfer that property and as such, learned counsel contended that the Court below on account of misconception of law has arrived at a finding in an illegal manner running contrary to the basic principles of law under Order 33 of the Code and on that basis, arrived at an erroneous finding that the applicant is not an indigent person and it illegally refused to exercise jurisdiction vested by not granting the relief and leave to sue as an indigent persons, *