S RESLETH Vs. INDIAN BANK

JUDGEMENT

(1.) The 12th defendant in O.S. No. 75/86 of the Principal Sub Court, Quilon, has filed this petition seeking permission to file the appeal as an indigent person. As part of the enquiry regarding indigency of the petitioner notice was given to the Advocate General and the State has furnished a report to the effect that the petitioner is not possessed of any immovable properties and that she has not disposed of any property within two months prior to the date of filing of the application. However, in the report it is stated that the petitioner's husband is a prominent businessman and he is having an annual income of more than Rs.1 lakh. In view of the above report it is contended by the respondents that the petitioner is not an indigent person, as she has got financial resources to pay the court fee. The learned counsel for the petitioner submits that the indigency of the petitioner is to be decided solely on the basis of her financial capabilities-and not on the basis of the properties held by her husband. Reliance was placed on various authorities.

(2.) O.33 R.1(a) C.P.C says that if the petitioner is not possessed of sufficient means, he may be allowed to file the appeal as an indigent person. In Order XXXIII Rule I-A it is stated that there shall be an enquiry into the means of the indigent person. It is stated that if the enquiry into the question whether or not a person is indigent person shall be made in the first instance by the chief ministerial officer of the Court, unless the Court otherwise directs, and the court may adopt the report of such officer as its own finding or may itself make an enquiry into the question. So also Order XXXIII R.2 says that every application for permission to sue as an indigent person shall contain the particulars required in regard to the plaints in suits with a schedule of any movable or immovable property belonging to the applicant with the estimated value thereof. From these provisions it is clear that the enquiry shall confine to the capacity of the petitioner. If the petitioner has got relatives who are possessing valuable properties, that is not a criterion to disallow the petitioner to sue as an indigent person.

(3.) This question came up for consideration before the High Court of Gujarat in Bai Moti v. Bai Ladhi (AIR 1974 Guj. 52). The court held that the means possessed by the petitioner's husband was not to be taken as the means of the petitioner for the purpose of determining the question of indigency under O.XXXIII, R.I, C.P.C