PATHUMMA Vs. K S E B

JUDGEMENT

(1.) APPLICANTS in Indigent Original Petition No. 35 of 1991 on the file of the Subordinate Judge, Tirur are the appellants. They are legal heirs of one Marakkar and the suit is laid against the Kerala State Electricity board for realisation of a sum of Rs. 2,29,360/- as compensation due to the death of the said Marakkar by electric shock. The first appellant is the wife and appellants 2 to 8 are the' children of the deceased Marakkar. Appellants filed indigent O. P. 35 of 1991 before the court below for permission to sue as indigents alleging that they have no sufficient means to pay the Court fee of rs. 15,130/ -. However, the Court below by the impugned order dismissed the application holding that the appellants have sufficient means to pay the court fee and they are not indigent persons. Hence, this C. M. A.

(2.) THE question that arises for consideration is whether the appellants are possessed of sufficient means to pay the Court fee. No doubt, the report of the Government will show that an extent of 741/2 cents of land stood in the name of the late Marakkar, the predecessor of the appellants. But then, the appellants have a case that 421/2 of land in Survey Nos. 50/10,20/1 and 50/9 are "oru Pooval" nilam in the possession of the brother of the deceased Marakkar, who was examined as PW. 2 and after deducting that extent, they are actually in possession of only 32 cents of land. THE appellants have a further case that the plaint schedule property is the property where their residential house is situated and it belonged in co-ownership to 8 persons including two minors being the wife and children of the deceased and all the 8 persons require residential house to be constructed over the land. If residential houses for 8 persons are constructed over the 32 cents of land, no portion of the property will be available for sale for raising the amount for payment of court fee. However, this contention did not find favour with by the learned Sub-Judge who held that if the appellants transferred sixs cents of land out of the land possessed by them, they could raise the amount necessary for payment of court fee. According to the learned Sub judge, the appellants are also not entitled to exemption under clause (c) of s. 60 (1) of the Code of Civil Procedure since the exemption under that provision applies only to residential building and site appurtenant thereto and it does not exclude the property where a building could be constructed in future. In short, according to the learned Sub Judge, the appellants are liable to raise the amount for payment of court fee by selling six cents of land from plaint A schedule property. We do not think that the reasoning of the court below is either sound or pragmatic. THE question to be considered is not mere possession of property by the appellants, but sufficient means, that is the capacity to raise money to pay court fee and it is incumbent upon the court to come to a finding on that point. THE capacity to raise money is the crux of the matter and this turns on immediate convertibility of the property into cash (Krishna iyer, J. in Janakykutty v. Varghese (1969 KLT 95 3) ). Viewing the matter from a practical stand-point, it has to be held that an indigent person need not be bereft of all material possessions. THE C. P. C. confers the benefit on persons without "sufficient means". It refers not to a person without any means. On the other hand, the expression used is "sufficient means" which is, means sufficient to pay court foe after meeting the basic needs of life. (Xavier v. Kuriakose (1987 (1) KLT 176) ). THE possession of "sufficient means" in Order 33 R. 1 CPC means possession of sufficient realisable property within the immediate reach of the plaintiff (s) which can be immediately converted into cash. Debts due to be realised or assets not within the immediate reach of the plaintiff (s) to be converted into cash cannot therefore, be taken into consideration for calculating sufficient means. (Prabhakaran Nair v. Neelakantan Pillai (1987 (2) KLT 376) ). Reference can also be made to the decision reported in Sanyukta v. Prem. Kumar Madan (AIR 1974 punjab & Haryana 203) wherein it is stated that "what is to be seen is not whether a person possesses, sufficient property which can enable him to pay the prescribed fee but whether he has sufficient means for this purpose". To the same effect also is a ruling of the Patna High Court reported in Dulhin suraj Mukhi Devi v. Jokhu Raj (AIR 1972 Patna 313 ). In like vein is the observation of the Andhra Pradesh High Court in the decision reported in virupakshiah v. Shivalingaiah (AIR 1960 A. P. 540 ). At paragraph 8, it has been held as follows: "when the property does not consist of cash, the test is not whether a person has a power in the abstract of raising money, but whether, in the concrete circumstances of the case, he could succeed in raising anything substantial by exercising that power. In each case evidence would be necessary to enable one to judge whether money could be raised on the properties". In other words, the person concerned should possesses the potential to raise cash.

(3.) THE 40th clause of the Great Charter of Runnymede declared that justice shall not be sold, denied or delayed: "nulli vendemus,nullinegabimus,aut differemus rectum aut justiciam". What was implicit in the need for this promise was that Royal Justice was, otherwise, popular; but the complaint was that it was too dear and it was slow in coming. THE subsequent course of history of the administration of justice in England shows that the Magna-Carta did not wholly stop the evils of delays in, and expensiveness of, Royal Justice but it did, after all, do something, perhaps something substantial to cheapen justice and stop the abuses which were rampant in King John's Reign: (See History of English Law 57-58 ). Dr. R. M. Jackson - Machinery of Justice in England "fifth Ed. , 324 - points out the dependence of Royal Justice in England in part at least, on the profits of its administration earned: "in the past, the growth of Royal Justice was partly due to the profits that accrued from exercising jurisdiction. THE early itinerant justices were more concerned with safeguarding the King's fiscal rights than with the trial of ordinary actions. A law Court was expected to pay for itself and show a profit for the King. It is sometime since justice has been a substantial source of income, but the old idea survives in the idea that the Courts ought not to be run at a loss. " THE Court fee as a limitation on access to justice is inextricably intertwined with a "highly emotional and even evocative subject stimulating visions of a social order in which justice will be brought within the reach of all citizens of all ranks in society, both those blessed with affluence and those depressed with their poverty". It is, it is said, like a clarion call to make the administration of civil justice available to all on the basis of equality, equity and fairness with its corollary that no one should suffer injustice by reason of his not affording or is deterred from, access to justice. THE need for access to justice, recognises the primordial need to maintain order in society as disincentive of inclinations towards extra judicial and violent means of setting disputes. On this a learned author "access to justice" by Cappellbtti, Vol. 1, Book 1, 419 says: "the need for access to justice may be said to be two fold; first, we must ensure that the rights of citizens should be recognized and made effective for otherwise they would not be real but merely illusory; and secondly we must enable legal disputes, conflicts and complaints which inevitably arise in society to be resolved in an orderly way according to the justice of the case, so as to promote harmony and peace in society, lest they foster and breed discontent and disturbance. In truth, the phrase itself, "access to justice", is a profound and powerful expression of a social need which is imperative, urgent and more widespread than is generally acknowledged". 5. THE stipulation of court-fee is undoubtedly a deterrent to free "access to justice", but one of the earlier avowed objects of Court fee was stated to be - as was done in the preamble of the bengal Regulation which in 1795 imposed High Court fees -discouragement of litigation, particularly the speculative and the frivolous variety. Lord Macaulay called that Preamble "the most eminently absurd Preamble, that was ever drawn. " THE view of Macaulay "the crisis of the Indian Legal System" by Upendra Baxi, 54 on the subject are worth recalling: "if what the Courts administer be justice, is justice a thing which the Government ought to grudge to the people? It is undoubtedly a great evil that frivolous and vexatious suits should be instituted. But it is an evil for which the Government has only itself and its agents to blame, and for which it has the power of proving a most efficient remedy. THE real way to prevent unjust suits is to take care that these shall be just decision. No man goes to law except in the hope of succeeding. No man hopes to succeed in a bad cause unless he has reason to believe that it will be determined according to bad laws or by bad judges. Dishonest suits will never be common unless the public entertains an unfavourable opinion of the administration of justice. And the public will never long entertain such an opinion without good reason ( the imposition of court-fees) neither-makes the pleadings clearer nor the law plainer, nor the corrupt judge purer, nor the stupid judge wiser. It will no doubt drive away the honest plaintiffs who cannot pay the fee. But it will also drive away dishonest plaintiffs who are in the same situation. THE Krishna Iyer Committee on Legal aid also said: "something must be done, we venture to state, to arrest the escalating vice of burdensome scales of court fee. That the State should not sell justice is an obvious proposition but the high rate of court fee now levied leaves no valid alibi is also obvious. THE Fourteenth report of the Law Commission, the practice oft per cent in the socialist countries, and the small standard filing fee prevalent in many western countries make the indian position indefensible and perilously near unconstitutional. If the legal system is not to be undemocratically expensive, there is a strong case for reducing court fees and instituting suitors fund to meet the cost directed to be paid by a party because he is the loser but in the circumstances cannot bear the burden. " (See in this connection P. M. Ashwathanarayana Shetty v. State of Karnataka - AIR 1989 SC 100 ). 7. In the light of the principles laid down by the various decisions of the Courts referred to above and the opinion expressed by noted jurists quoted above, we do not think that the learned judge has either approached the question in the proper perspective or taken a correct decision in accordance with the legal principles applicable in the matter. Approaching the problem in the correct perspective and applying the relevant legal principles, we are of the view that possession of 32 cents of land by the 8 appellants (petitioners in IOP 35 of 1995) cannot be treated as a ground for holding that they are not indigent persons. THE mere fact that they are holding 32 cents of land cannot be held to be a basis for holding that they have sufficient means to pay the court fee or have enough potential to acquire sufficient funds to pay the court fee required to be paid in the suit. We say so because first of all the said property is a property wherein the residential house is situated. THEre is nothing on record to show that any portion of the property can be conveniently separated so that such portion can be sold for realisation of the required fund for payment of court fee. No effort has been made to find out the exact location of the house in the property. If the house is situated at the centre of the 32 cents of land, the entire property can only reasonably be treated as land appurtenant to the building and necessary for the convenient enjoyment of the residential house. Secondly, it is important to note that two of the co-owners of the property are minors and it may be difficult to find out a purchaser-for such property or part of it. Thirdly the requirement of the vacant land for putting up of additional residential accommodation for co-owners is also a very relevant factor which should have gone into the mind of the court while deciding the issue. THEre is nothing on record to show that that aspect was taken note of by the learned judge while passing the order. Lastly, it is also relevant to note that the petitioners are the members of the family consisting of a widow and her children who have lost their only bread winner all on a sudden as a result of electric shock for which they are claiming compensation in the suit. THEre is nothing on record to show that the widow and unmarried children have any other source of livelihood other than the meagre income which they may be getting at present from the 32 cents of land which is in their possession. Taking note of the above important aspects of the case, we are of the firm view that it is a fit case where the appellants should be treated as persons having no sufficient means to pay the court fee required to be paid in the appeal. Accordingly, we would allow them to file the suit as indigent persons while setting aside the order of the learned Sub Judge. In the result, the appeal will stand allowed. THE order appealed against will stand set aside. Parties will bear their respective costs. . .