HARBANS SINGH Vs. JASBIR SINGH

JUDGEMENT

(1.) The revision petition is against the order disallowing the continuance of appeal as an indigent person. The contest taken in application for prosecution the appeal as indigent person was that the appellant-petitioner had not disclosed his entitlement to another property of 53 kanals 2 marlas of land in a specific Khasra number. The petitioner had already disclosed his own ownership of house in abadi and an acre of land in his possession which according to him was not sufficient to earn income for paying court fee. Learned counsel for the petitioner would now contend that entitlement to the property which is referred to through a revenue official's record is admitted but however the property is not in his own possession but in the possession of his brother. He could contend that he is a senior citizen with failing eye sight and he is not able to make any income from the possession of lands which he has nor has he obtained income from the property in which he is entitled to a share which is in the possession of his brother.

(2.) The counsel relies on judgment of this Court in Vijay Rani v. Nasib Chand Sharma, 1990 97 PunLR 561, where the Court was examining whether the subject matter of the suit itself was required to be taken. The Court rejected that it cannot be taken. There is not even an issue before this Court. The possession of property other than the subject matter of suit is what was pointed out in the impugned order. The above judgment cited therefore has no application. In yet another judgment in Smt. Shanti Devi and others v. Dharam Pal and others, 1983 AIR(P&H) 294 where the permission to file an appeal as an indigent person was refused on the ground that the appellant was earning salary and owned agricultural property which was capable of yielding substantial income. The Court set aside the order refusing such permission on the ground that the salary of the appellant was exempt from attachment and even the agricultural income was also exempt under Section 61. The Court, therefore, was examining the issue of attachment of a property as relevant. This again, in my view, is irrelevant for I am not setting out any pleas of land as being owned by the petitioner which is not capable of being attached. This judgment also cannot apply. In O.P. Neelam Hosiery Works v. State Bank of India, 1994 3 LJR 542 the Himachal Pradesh High Court was considering the sufficiency of means as irrelevant criterion and not the sufficiency of property. The Court was not, however, considering a situation of a party suppressing the existence of a particular item of property. Therefore, this judgment also does not apply. To the same effect was also a reasoning of a Division Bench in Rajamma Joseph v. Binu Prasad, 2010 1 KerLT 572where the Court was holding that a mere possession of immovable property with a proof of partition was not sufficient.

(3.) All these decisions have no application where the plaintiff was suppressing the existence of property even and was also contending that such property was not capable of yielding income. The suppression of a material fact itself ought to be a sufficient ground for denying to the petitioner the benefit of prosecuting the appeal as an indigent person. Order 33 Rule 9 CPC contains provision for dispauper. It allows for an application to have the plaintiff dispaupered, inter alia, on the ground that he is guilty of vexatious or improper conduct. This provision has always been applied also as a test for assessing whether the plaintiff could be permitted to prosecute the suit as an indigent person. Suppression of the material fact relating to possession or entitlement has been held to be improper conduct within the meaning of this provision in Mathai M. Paikeday v. C.K. Antony, 2011 13 SCC 174 where the Supreme Court held that non-production of bank account transaction details amounted to suppression of fact and an adverse inference can be drawn. In Venkatesh Iyer v. Bombay Hospital Trust and others, 1998 AIR(Bom) 373 the Bombay High Court held that non-production of assets amounts to improper conduct and in respect of consideration with said assessment. The dismissal of the plea by the appellant to prosecute the appeal as indigent person was perfectly justified and I find no reason to interfere with the same. The petitioner will have a time of two months for payment of court fee and if it is not done, the court will deal with the issue in accordance with law. The revision petition is dismissed but with above directions.