SOMESWARA RAO K Vs. G SANYASI SETTY

JUDGEMENT

(1.) The Order of the II Additional Sub-Judge, Kakinada in OP.No.31 of 1988 dated 22-10-1990 holding that the appellant is not the indigent person for the purpose of Order 33, Rule 1 of Code of Civil Procedure in regard to the exemption to pay the Court fee is challenged in this appeal.

(2.) The appellant/petitioner filed the suit in forma pauperis against the respondents. He pleaded that he was handicapped to pay the Court fee of Rs.2446/- on the plaint. The plea of the indigent person was disputed by the respondents. An enquiry was held into the controversy. The appellant examined himself as P.W.I and his father as P.W.2 and the 1st respondent examined himself as R.W.I and a witness as R.W.2 and Exs.B-1 to B-3 were marked for the respondents in addition to Exs.X-1 and X-2 and none for the appellant. The appellant claimed to be a hawker having no sufficient income to pay the Court fee. He testified that P.W.2 his father paid him Rs.9,000/- in lieu of his share in the family properties and beyond that he has no other properties. P.W.2 also testified that whatever properties P.W.I had and got from his father under a will, he disposed them of and therefore there is no property which the appellant can make use of to raise funds to pay the Court fee. The learned Sub-Judge felt that the alleged partition between the appellant and his father P.W.2 is not established, P.W.2 is having substantial extent of agricultural lands and the appellant has suppressed the fact of his having substantial property to raise the funds and therefore, he is not an indigent person.

(3.) The learned Counsel for the appellant has contended that even taking all the evidence on record in the manner the learned Sub-Judge has understood, itonly means that thereissome property with P.W.2and not with theappellant at any cost and therefore as per the true implications of Order 33, Rule 1 of C.P.C., the meaning of 'possessed' should be understood to such an extent that the person claiming to be an indigent person must be capable of using it for raising the funds to pay the Court fee. In this regard, he depended upon A. Muralidhar vs. Soshalamma Asha Devi vs. Devi Dayal and another, A. Prabhakaram Nair vs. K.P. Neelakantan Pillai, Indrasan vs. Lucknow Nagar Mahapalaka and others, Smt. Mala Devi vs. Priyamoni Devi and Mandam Abdul Sattar Saheb vs. H. Abdul Hakeem and others. Muralidhar's case and Sattar Saheb's case supports the contention of the learned counsel for the appellant. The implications of Order 33, R.1 CPC is that the person claiming to be an indigent person should not be possessed of sufficient means, to mean that there is no capacity to him to raise the money or the actual money or funds to pay the Court fee. Neither the subject matter of the litigation nor the property with other persons including the other members of the family nor elsewhere would be relevant to decide such a question. The true implication of the provision is that at the relevant time, a person claiming to be an indigent person ought to be incapable of raising sufficient funds from any means to pay the Court fee and not otherwise. The finding of the learned Sub-Judge that P.W.2 the father of the appellant, owns nearly Ac.13-95 guntas of land as can be gathered from certain documents, is totally irrelevant. There is no finding to the effect that the appellant is possessed of any such means so as to enable him to raise the funds to pay the Court fee. To interpret Order 33, R.I of CPC in any other manner in regard to the expression 'sufficient means' would defeat the very purpose of the provision. Particularly, in this case, when the appellant claims to be a hawker having pledged the gold of his wife and presuming that he has some share in the property of his father, P.W.2, on the face of it cannot be said that he is a person who is in possession of the property. There is also nothing to indicate when Rs.9,000/- were given to him and whether it is still available with him for the purpose of using i t to pay the Court fee at the relevant time. In that view of the matter, the finding and the order of the learned Sub- Judge cannot satisfy the requirements of Order 33, Rule 1 of CPC and deserves to be set aside.