PATHUMMA Vs. KSEB

JUDGEMENT

(1.) Applicants is 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 Sate 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 74-1/2 cents of land stood in the name of the late Marakkar, the predecessor of the appellants. But then, the appellants have a case that 42-1/2 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 P.W. 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 minor 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 six 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 Section 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, hat 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 KerLT 953. 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 fee after meeting the basic needs of life. (Xavier v. Kuriakose,1987 1 KerLT 176). The possession of "sufficient means" in Order 33 Rule 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 KerLT 376. Reference can also be made to the decision reported in Sanyukta v. Prem Kumar Madan, 1974 AIR(P&H) 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, 1972 AIR(Pat) 313 In like vein is the observation of the Andhra Pradesh High Court in the decision reported in Virupakshiah v. Shivalingaiah, 1960 AIR(AP) 540 At paragraph 8, it has been held as follows :

(3.) If the requirement of law is that, a person has to sell whatever little he possess in this world or beg, borrow or steal to raise money for payment of court fee, that will be too harsh an approach to the problem resulting in manifest injustice cutting at the very root of the basic values and ideals of administration of justice in a welfare-State. While stating so we are only reminding ourselves of the constitutional obligations of the State to administer justice within its realm and the Directive Principles of Sate Policy in Article 39A which enjoins the State to ensure that opportunities of securing justice are not denied to any citizen by reason of economic or other disabilities. The laws' delays and expenses of litigation are the notorious twin spokes on the wheels of legal system and administration of justice. If the social and economic change is to be achieved through peaceful means, then their realisation and effectuation which are directly linked to the availability and efficacy of expeditious and cheap legal remedies must receive top priority of the constitutional agenda.