SHANTI DEVI Vs. DHARMA PAL

JUDGEMENT

(1.) The four petitioners have challenged, in revision, the order of Shri N. S. Rao, District Judge, Karnal, dated 8-1-1982, whereby he refused them the permission to appeal as indigent persons.

(2.) The skeletel facts which have given rise to this petition are these Dharma Pal respondent brought a suit for specific performance of an agreement of sale in respect of agricultural land measuring 45 Kanals,4 Manals fully detailed in the plaint. The suit is directed against Phula. Phula is now dead and is succeeded by the four petitioners as also the pro forma respondents other than Dharma Pal, the contesting respondent. This suit was decreed by the trial Court on 30th October, 1980. Feeling aggrieved, the petitioners filed appeal and prayed for permission to do so as indigent persons as according to them they did not posses sufficient means to enable them to pay the Court fee prescribed by law. On calculation, the Court fee comes to Rs. 6,970/- . The learned District Judge took the view that out of the four petitioners, Bhima, Subhash and Puran were workmen earning their livelihood. With regard to the fourth petitioner, Smt. Shanti, widow of Phula, he observed that she was an able-bodied person and as ruralite she would be working in the fields. Since the four petitioners were treated to be earning their livelihood, it was a factor which went towards holding that they had the means to pay the Court fee. The other factor which weighted with the District Judge was that in the year 1972, the land in dispute measuring 45 Kanals 4 Marlas had fetched Rs. 5,000/- as lease money and since the land was canal and tubewell-irrigated, it was fetching sufficient income. On the these two factors he disbelieved the petitioners and held that they were not indigent persons and hence refused them permission to prefer the appeal as such. It is to challenge this order that the present revision petition has been filed.

(3.) Mr. I. K. Mehta, learned counsel for the petitioners, has challenged the legality and propriety of the impugned order on the premises that the learned District Judge has nowhere found that the petitioners have, at present, the means to pay Rs. 6,970/- as Court fee. According to him, the mere fact that all the petitioners were able-bodied persons and earning their livelihood, as also that the land was productive of agricultural income, alone do not go to show that the petitioners are having sufficient means to pay the Court fee. He sought to support his argument by relying on judicial pronouncements which are in the filed prior to the amendment of Order 33 Civil P. C., which came into effect on 1-2-1977. I do not think those precedents would be of much use for the decision of this petition. Sufficedly, reference may be invited to Sanyukta v. Prem Kumar, (1974) 76 Pun LR 5 : (AIR 1974 Punj & Har 203), wherein P. C. Pandit, J., had held that under Order 33, Rule, J. C.P.C., the question to be seen is not whether the applicant possesses sufficient property which can enable him to pay the court fee but whether he has sufficient means for this purpose. It was also observed that the applicant may or may not have the requisite amount with him but if he can raise the requisite money on some property he will not be considered to be a pauper. This precisely is the line of reasoning as given by the learned District Judge while interpreting the present O. 33, R. 1. It would be appropriate to juxtapose the old and the new provision. Prior to 1-2-1977 ORDER XXXII Suits by Paupers After 1-2-1977 ORDER XXXIII ( 1. Suits may be instituted in forma pauperis.-- Subject to the following provisions, any suit may be instituted by a pauper. 1. Suits may be instituted in forma pauperis.--Subject to the following provisions any suit may be instituted by an indigent person. Explanation.--A person is a "pauper" when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing-apparel and the subject-matter of the suit. Explanation I.--A person is an indigent person,--(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) where no such fee is prescribed, if he is not entitled to property worth one hundred rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit. Explanation II:--Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III.--Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.