S SATYANARAYANA Vs. V KOTIRATNAM

JUDGEMENT

(1.) The above Miscellaneous Appeal arises out of an application under Order 33 of Civil Procedure Code filed before the Subordinate Judge at Vijayawada seeking permission of that Court in O.P.No. 27 of 1980 to sue as an indigent person. The petitioner seeks to sue informa pauperis the two respondents for recovery of a substantial sum of Rs. l,80,000/- as liquidated damages. His case is that he was a tenant in a portion of the ground floor belonging to the respondents which is situated on the Besant Road in a busy part of vyayawada. Not unexpectedly disputes develoved between bun as a tenant and the respondents as landlords. The petitioner's complaint is that the landlords, having failed in their attempts to get the rents payable by him for the demised premises enhanced, dug holes on the terrace of the demised premises making it uninhabitable. During rainy season rain water used to pour into the rented portion of the building and damage the stock in trade of the petitioner. The petitioner was, therefore, compelled to file O.S.No. 1539/75 on the file of the District Munsif, Vijayawada and sought an order restraining the respondents from interfering with his peaceful possession of the building. That suit, after contest, ended in a compromise on 6-11-1975. Under the compromise the petitioner had agreed to shift his business into the rear side portion of the building belonging to the respondents temporarily on the assurance that he would be back into the demised premises once the repair of the damaged building was over. The compromise also provided that in the event of the respondents failing to restore back the possession to the petitioner as agreed to, they should pay Rs. 5,000/- per month as liquidated damages. The petitioner's case is that on completion of repairs, the respondents, instead of delivering the premises back to him, had leased it out to another person on a monthly rent of Rs. l,000/- and in return of an amount of Rs. 75,000/- by way of 'Pagri'. The petitioner had, therefore, filed earlier O.S.No. 54/76 for recovery of the liquidated damages under the above compromise for two years and obtained a decree on 17-1-1979. He had now filed the present application seeking permission to sue as an indigent person for recovery of damages for the subsequent period i.e., from 17-3-1976 to 16-7-1979.

(2.) The respondents opposed this application contending that the petitioner had sufficient means to pay the court fee. According to them, the petitioner had secreted all his business assets while shifting from Vijayawada to Chilakaluripet and that he is doing business there in association with his undivided son. They also averred that the petitioner had failed to show the decree amount of Rs. 1,80,000/-which he obtained in the above O.S.No. 54/76. Above all, it is contended by the respondents that the petitioner had not shown moveables worth about Rs. 400/-.

(3.) Valuable time of the court is being spent on these unavoidable procedural wrangles. The lower court has examined these contentions in detail in a carefufly written and closely reasoned Judgment. It found, the petitioner had mentioned about the decree amount of Rs. 1,80,000/- which he had obtained in the above O.S.No. 54/76, in the body of plaint though not in the Schedule. The lower court for that reason did not consider the petitioner's failure to mention that decree in the schedule as a ground for rejecting the petitioner's application. The other point which the lower court considered was the failure of the petitioner showing moveable property worth Rs 400/-. The court rejected the application of the petitioner to sue as an indigent person for the failure of the petitioner to mention the moveables worth about Rs. 400/-. The lower court noticed that Rs. 400/- is not even a fraction of the total court fee payable. But the lower court felt helpless because this court in Nuka Raju vs. Rajani China Appannd following a Bench decision of the Madras High Court in Chellammal vs. Muthulaxmi Ammal ruled that such considerations are out of place for the application of Order 33 Rule 5 of Civil Procedure Code. Order 33 Rule 5 of Civil Procedure Code does say that an application to sue informa pauperis should be rejected if the petitioner's assets together their valuation is not shown in a schedule. According to the above judgments of this court and the Madras High Court, Order 33 Rule 5 is based on a pound of flesh theory. For the defaulter, there is no salvation except in disnisal. The court, therefore, held that where the petitioner seeking to sue as an indigent person fails to mention the assets which are in his possession, the request shall be rejected without considering the motive for such failure. It is on that ground the lower court rejected the application of the petitioner to sue as an indigent person. It is against that order this C.M.A. has been filed.