BALASHANKAR TRADERS THROUGH PARTNER RAHUL Vs. JHANWAR ICE & COLD STORAGE THROUGH PARTNER ANIL KUMAR

JUDGEMENT

(1.) Being aggrieved by the order dated 21/07/09 passed by XIII ADJ, Indore in MJC No. 44/07 whereby application filed by appellants under Order XXXIII Rule 1 CPC was dismissed, present appeal has been filed. Short facts of the case are that the appellants filed a suit on 03/10/07 for recovery of a sum of Rs.2,41,16,400/-. Alongwith the suit an application under Order XXXIII Rule 1 CPC was filed alleging that for a suit of the aforesaid amount requisite Court fee is of Rs.19,57,800/-. It was alleged that appellants are having no means to pay such a huge Court fee, therefore, appellants be permitted to prosecute the suit as indigent person. The application was opposed by the respondents. After hearing the parties learned trial Court dismissed the application, against which present appeal has been filed.

(2.) Learned counsel for the appellants argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the report was called from the Collector, Ujjain, but without waiting for the report, impugned order has been passed. It is submitted that the evidence lead by the appellants were completely ignored by the learned Court below. Learned counsel placed reliance on a decision of this Court in the matter of Parasram Vs. Mst. Ratiabai,1982 MPWN 461 wherein hut of small value not given in schedule of property and the value of hut was wholly insufficient for payment, this Court held that non-disclosure is of no consequence. Further reliance is placed on a decision in the matter of Janak Kumari Vs. Land Acquisition Officer,1998 1 MPWN 164 wherein Divisional Bench of this Court has taken into consideration the explanation of Order 33 Rule 1 CPC and held that indigent person is a person not having sufficient means to pay Court fees. It was further held that while considering the application for property and income of spouse is irrelevant and extraneous. Reliance is also placed on a decision in the matter of Hukumchand Vs. Kailash,1988 2 MPWN 58 wherein this Court held that suppression of property not malafide and also not sufficient to pay Court fees and application cannot be thrown out. Further reliance is placed on a decision in the matter of Vishnu Vs. Purkha,1983 MPWN 357 wherein Court fee payable was of Rs.4,130/-and the appellant was in possession of a house of Rs.500/-, this Court held that the appellant is indigent person. Reliance is also placed on a decision in the matter of Kishan Vs. Godawaribai,1988 2 MPWN 65 wherein this Court held that share in property does not amount means to pay Court fee. Learned counsel further submits that inspite of fact that respondents are party to the suit, respondents did not appear in witness box to explain that appellants were having sufficient means to pay Court fee, therefore, adverse inference ought to have been drawn against respondents. For this contention learned counsel placed reliance on a decision in the matter of Vidhyadhar Vs. Mankikrao, 1999 AIR(SC) 1441 wherein Hon'ble Apex Court held that not entering the witness box give rise to inference adverse against him. On the strength of aforesaid position of law learned counsel submits that the appeal filed by the appellants be allowed and impugned order passed by the learned Court below be set aside and appellants be permitted to prosecute the suit as an indigent person.

(3.) Learned counsel for respondents submits that since the fact that the appellants are having sufficient means to pay Court fee is evident from the evidence adduced by the appellants itself, therefore, there was no necessity for the respondents to enter into witness box. It is submitted that the report of Collector was also not necessary as the fact that appellants are having sufficient means to pay Court fee is proved from the facts stated in the application and evidence adduced by the appellants. It is submitted that the appellants are in trade. It is submitted that the firm of appellants was dissolved long back and the appellants are doing transactions in lacks, which is proved from the record itself. It is submitted that in the facts and circumstances of the case, appeal filed by the appellants has no merits and the same be dismissed.