ANDREWS Vs. HASSAN

JUDGEMENT

(1.) The question involved in this appeal is whether a plaintiff who has paid only l/10th of the court fee along with the plaint and who has sold a substantial item of immovable property after the institution of the suit could claim to be an indigent person and maintain an application under Rule 1 of Order 33 of the Code of Civil Procedure, in so far as the balance court fee is concerned.

(2.) The appellant instituted OS. No. 533 of 1996, on the file of the Additional Sub Court, Thrissur for realisation of a sum of Rs. 5,46,760/- from the defendants. The court fee payable is Rs. 39,307/-. Along with the plaint, the appellant paid Rs. 4,000/-as court fee as 1/10th of the court fee payable under Section 4A of the Kerala Court fees and Suits Valuation Act, 1959. Written statement was filed by the defendants on 12-09-1997 and they also preferred a counter claim on that date. However, issues were framed only on 6-11-2003 and the appellant/plaintiff was directed to pay the balance court fee. After the institution of the suit, the appellant/plaintiff sold an extent of 13 cents of land with a two storeyed building on 21-5-1998, as per Ext. B1 assignment deed, for a consideration of Rs. 2,50,000/-. On 22-11-2003, the plaintiff filed LA. No. 6663 of 2003 under Rule 1 of Order 33 of the Code of Civil Procedure. The prayer in the application is to "exempt the plaintiff from payment of the balance court fee. In the affidavit accompanying the application, it is stated that the plaintiff has no income or financial capacity to pay the balance court fee. It is stated that he has no job and he is not possessed of any saleable property. The execution of Ext. Bl dated 21-5-1998 is not disclosed in the affidavit. It is also not stated in the affidavit that the plaintiff has not, within two months next before the presentation of the application, disposed of any property. LA. No. 663 of 2003 was opposed by the defendants. It was contended by the defendants that the suit was filed on 15-5-1996 and the relevant date of considering whether the plaintiff was indigent was the date of filing of the suit. They also contended that the plaintiff owns movable and immovable properties and that he is a contractor. The application was filed without disclosing the assets belonging to the plaintiff.

(3.) Before the court below, the plaintiff adduced evidence as PW1 and the first defendant as RW1. The plaintiff stated in evidence that he is an Ex-service man and he gets a monthly pension of only Rs. 1,900/-, He has to maintain his family consisting of six members and the amount of pension is not sufficient to maintain his family. A suggestion was made in cross examination to PW1 that he gets a pension of Rs. 5,400/-per month. The pension book was not produced by the plaintiff. It was admitted by PW1 that he sold 13 cents of land with a two storeyed building to one Wilson Chittilappilly on 21-5-1998. It was suggested to PW1 that he transferred his property to defeat the counter claim of the defendants and that the sale consideration of Ext. B1 was used by the plaintiff for purchasing property in the name of his wife. In the evidence of RW1, it was stated that the property sold by the plaintiff consisted of a two storeyed building having a plinth area of 2500 sq.ft. and that the property was sold for a consideration of Rs. 12 lakhs. He stated that for evading payment of stamp duty and income tax, the sale consideration was shown as Rs. 2,50,000/- in Ext. Bl. An explanation was offered by PW1 that the sale consideration of Ext. B1 was utilised for discharging his debts. However, no oral or documentary evidence was made available before the court to prove the same.