PAULOSE ALIAS PAULO Vs. ELIAS K VARGHESE

JUDGEMENT

(1.) In this appeal filed under Order 43 Rule 1(na) of the Code of Civil Procedure, the appellant who was the petitioner in P.O.P. No. 6/2010 on the file of the Sub Court, North Paravur challenges the order dtd. 3.1.2011 passed by the Court below dismissing his application to institute the suit as an indigent person. In the proposed suit he is seeking a declaration that the assignment deed purported to be executed by him in favour of defendant No. 1 with respect to A schedule property admeasuring 91/2 cents of immovable property is a nullity. According to the appellant he is a coolie worker and he merely offered his property as a security to oblige the 1st defendant, a builder to avail a loan from the 2nd defendant and it was only later that he discovered that a fraud had been practiced on him by the 1st defendant by getting an assignment deed executed by the appellant. The plea is one of non est factum. There is no dispute that the total extent of the property possessed by the petitioner is only 11 cents of which 91/2 cents was the subject matter of the impugned assignment deed. What remains is only 11/2 cents of land and not 6 cents as was wrongly assumed by the court below. The property is in Mookannur Village of Aluva Taluk. During the enquiry under Oder 33 Rules 5 and 7, the court below observed that the appellant was colluding with the 1st defendant and the 11/2 cents of land (wrongly shown as 6 cents) which was the balance extent after excluding the property covered by the assignment deed could be sold and the means to pay the court fee could be found.

(2.) There is no dispute that the court fee payable is Rs. 4,11,020/- (Rupees four lakhs eleven thousand and twenty only). By virtue of clause (a) to Explanation I to Order XXXIII Rule 1 CPC, the subject matter of the suit and property exempt from attachment in execution of a decree, are to be excluded while considering the question as to whether the applicant is possessed of sufficient means. If so, the property which can be considered to have retained by him is only 11/2 cents and not 6 cents as was wrongly assumed by the court below. The question then is whether the appellant who is in possession of 11/2 cents of land could be said to be possessed of sufficient means to pay the court fees of Rs. 4,11,020/-. The mere fact that the applicant in a petition for leave to sue in forma pauperis is stated to have some interest in immovable property by itself, should not be taken to mean that he has the means to pay the prescribed court fee. The real test is whether the petitioner is in a position, in the ordinary course, to convert his possession into liquid cash without undue hardship and delay and pay the requisite, court fee (see Kamalamma v. Karthiayani, 1972 KerLT 783. The law does not expect him to make a distress sale of his only property and pay the court fee and thereafter five in penury or abject poverty. Courts have to construe the provisions with a pragmatic insight and without sacrificing the social justice element and the constitutional ethos behind the sublime process of administration of justice.

(3.) An indigent person need not be one bereft of all material possessions of value. The Code confers the benefit on persons with out '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 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. A person who has no possession, save his residential house, and who is over 70 years of age with no prospect of earning capacity, is a person without means to pay the requisite court fee. (Vide Xavier v. Kuriakose,1987 1 KerLT 176.