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SYED ZALEEL ZARE V/S P. VENKATA MURALIDHAR & OTHERS, decided on Friday, October 6, 1978.
[ In the High Court of Andhra Pradesh, Civil Revn. Petn. No. 4013 of 1977. ] 06/10/1978
Judge(s) : NARASINGA RAO
Advocate(s) : Challa Seetharamayya. K.R. Narasimham.
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  "1979 AIR (AP) 107"  ==   "1979 (2) Andhwr 56"  ==   "1978 (2) APLJ 421"  ==   ""  







    Narasinga Rao J.1. This revision petition gives rise to a short but interesting question with regard to the property to be excluded for the purpose of determining the means of the plaintiff to pay the requisite court- fee. The defendant has preferred this revision petition against the order of the III Additional Judge Secunderabad whereby he granted leave to the plaintiff to file the suit in forma pauperis.2. The plaintiff laid the suit for recovery of a sum of Rs. 37 050/- towards past mesne profits with future mesne profits at the rate of Rs. 100/- per day together with future interest and for possession of the suit premises. The plaint allegation is that the defendant is the tenant of the suit premises with a monthly rent of Rs. 550/- whose period of lease expired by 31-12-1973 and therefore he is a tenant by sufferance. The case of the defendant appears to be that he has a right of renewal from time to time. The three plaintiffs filed in forma pauperis the earlier suit O.S. No. 414/1969 for eviction. In that suit the finding of the trial court was that the defendant-tenant had the right of option to renew the lease up to 30-12-1973.Aggrieved by the said judgement the three plaintiffs preferred an appeal in forma pauperis in C.C.C.A. No. 97 of 1975 which was dismissed on 24-3-1977 holding that the defendant-respondent validly exercised the option on 31-12- 1973 but he has no further right of renewal. The plaintiffs thus claimed that the defendant is a tenant by sufferance and therefore he is liable to pay the past mesne profits at the rate of Rs. 1500/- per month and that after deducting the payment of Rs. 550/- per month they claimed Rupees 37 050/- on that account and future mesne profits at the rate of Rs. 100/- per day. It is however alleged by the plaintiffs that they are not possessed of sufficient means to pay the requisite court-fee of Rs. 3292/-.3. The inability of the plaintiffs to pay the court-fee was disputed by the defendant in the suit. The contention is that the suit premises is worth rupees two lakhs and that the subject-matter of the suit is only the tenancy right the plaintiffs' title is not disputed and therefore that value of the suit property has to be taken into account in determining the capacity of the plaintiffs to pay the court-fee.4. One of the plaintiffs has been examined as P.W. 1 in support of the alleged indigency of the plaintiffs. No rebuttal evidence has been let in by the defendant. On a consideration of the material the learned Additional Judge held that the evidence does not disclose that the plaintiffs possessed any other property which would enable them to pay the court-fee. Alternatively he held that even if the petitioners are held entitled to the property there is nothing to show that even the comparatively small amount of court-fee could be raised on the security of the suit building. It is this order that is sought to be assailed in the revision petition.5. Mr. Seetharamayya the learned counsel for the petitioner contended as follows : Though this pauper petition is governed by the amended provisions of Order 33 Civil Procedure Code the subject-matter of the suit is a tenancy right involved and not the property as such the title of which admittedly vests with the plaintiffs. Therefore the value of the property cannot be excluded in determining the question of the sufficient means. The contention on the other hand is that the amended provisions of Order 33 are substantially liberal provisions to enable an indigent person to seek permission of the Court in filing suits in forma pauperis. The further contention is that the examination of the question of the initial determination of the maintainability of the application is left to an officer of the Court under the amended provisions and this is another intendment of liberal application of the said provisions. It was lastly contended that the Court below cannot be said to have committed my error of jurisdiction in allowing the petition and therefore no interference is called for.6. At the outset it can be noted that though a single Judge of this Court in Laxmamma v. Yadagiri Rao AIR 1972 Andhra Pradesh 240 held that the State is primarily interested in questioning the legality or correctness of the order of the trial Judge in pauper proceedings and that where leave has been granted the Court will not interfere with it in revision preferred by the defendant it is now well settled that the enquiry into the pauperism is not exclusively a matter between the applicant and a State Government.7. The Supreme Court in M.L. Sethi v. R.P. Kapur AIR 1972 Supreme Court 2379 held as follows (at p. 2383) :Under Order 33 Rule 9 it is open to the Court on the application of the defendant to dispauper the plaintiff on the ground specified therein one of them being that his means are such that he ought not to continue to sue as a pauper. An immunity from a litigation unless the requisite court -fee is paid by the plaintiff is a valuable right for the defendant. It follows therefrom as a corollary that the proceedings to establish that the applicant-plaintiff is a pauper which will take away that immunity is a proceeding in which the defendant is vitally interested. This is further borne out by Order 33 Rule 6 which confers the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is not a pauper.Thus the defendant can be said to have a right to question the pauperism.8. Before considering the question as to what properties can be deemed to be in possession of the plaintiffs that would enable them to pay the court-fee it is necessary to note the relevant provisions of the Civil Procedure Code before and after the amendment of 1976. It is however common ground that the present. application for leave to sue in forma pauperis is filed in the month of April 1977 after the enforcement of the amended provisions of the Civil Procedure Code from 1-2-1977. The relevant provisions of Order 33(1) Civil Procedure Code prior to the amendment read as follows :-Subject to the following provisions any suit may be instituted as a pauper. 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.Explanations 2 and 3 as appended to this Rule 1 in the province of Madras as adopted by the Andhra Pradesh High Court read as follows : Explanation (ii) which is relevant for our purpose reads as follows :-Any part of the subject-matter of the suit which the opposite party relinquishes and places at the immediate disposal of the plaintiff shall be taken into account in considering the question of the possession of sufficient means by the plaintiff.The provisions of Rule 1 after amendment read as follows :1. Subject to the following provisions any suit may be instituted by an indigent person.-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 thousand rupees other than the property exempt from attachment in execution of a decree and the subject-matter of the suit.Thus under the old Code any part of the subject-matter of the suit relinquished by the opposite party and placed at the immediate disposal of the plaintiff has to be taken into consideration in considering the question of sufficient means by the plaintiff. After the amendment properties which are exempt from attachment in execution of a decree and the subject-matter of the suit have to be excluded in considering the question of sufficient means. The point for consideration is what is meant by the expression subject-matter of the suit. This expression is not defined in the Civil Procedure Code but that expression occurs in some of the provisions of the Code even prior to this amendment. In Order 23 Rule 1(3)(b) Order 33 Rule 3 and in the marginal note of Section 16 relating to place of institution of suits the expression has been used. Similarly in the Andhra Pradesh Court-fees Act the expression has come to be used Sections 11 24 etc.In Chenchuram Naidu v. Md. Bahavuddin AIR 1933 Madras 3 the expression 'subject-matter' was considered with reference to the provisions of Order 23 Rule 1. The facts of that case were that the plaintiff filed a suit for ejectment against two defendants Defendant No. 1 was a tenant paying rent to the plaintiff. However the 2nd defendant was made a party. A written statement was filed putting the plaintiff to strict proof of his title. The plaintiff withdrew the suit as against the 2nd defendant without obtaining permission. That suit proceeded against the 1st defendant. Subsequently the plaintiff instituted the suit against the 2nd defendant for ejectment. It was held that the withdrawal of the previous suit was no bar as the subject-matter of the suit was not the same.9. In Subodh Chandra v. K.L. Bank Ltd. AIR 1941 Calcutta 659 the provisions of Order 33 Rule 1 were considered and it was held that the equity of redemption cannot be regarded to be the subject-matter of the suit where the suit is for enforcement of the mortgage. It further held that the value of equity of redemption cannot be excluded by the Court from its consideration in determining whether the mortgagor is a pauper or not.10. In Vallabh Das v. Madanlal AIR 1970 Supreme Court 987 it is held (at p. 989) :Subject-matter in Order 23 Rule 1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit the second suit cannot be considered to have been brought in respect of the same subject- matter as the first suit.11. The question as to what is the value of the subject-matter of the suit for purposes of granting certificate for leave to appeal to the Supreme Court came up for consideration in Ramric Lal v. Sachindra Narayan AIR 1968 Calcutta 316. It is held therein that in a suit for eviction of a tenant by his landlord the subject-matter in dispute is tenancy and its value is different from the value of the property demised and though the market value of the flat may be more than Rs. 20 000/- but the market value of the tenant's interest cannot be the same. It was held that in the absence of any material to show that the tenant's interest is of the value more than Rs. 20 000/- a certificate under Article 133(1)(a) cannot be granted.The relief involved in the present suit is the eviction of a tenant. It cannot be said that the entire property itself is the subject-matter of the suit. The expression 'subject-matter of the suit' cannot be equated to the property itself. Thus the right in dispute is the right of the tenant to continue in possession. It is true that some amount on account of damages for use and occupation is also claimed. But nevertheless the whole premises itself cannot be said to be involved. Nor can it be said to be the subject-matter of the suit. Thus even under the amended provisions though the subject-matter of the suit has to be excluded in determining the question of sufficient means the value of the house premises or the value of the premises is not liable to be excluded in determining the question.It can however be seen that the old provisions while defining a pauper did not specifically provide for excluding the subject-matter unless where such part of the subject-matter is relinquished by the defendant and is put at the immediate disposal of the plaintiff. This explanation was engrafted as per the provisions of the Andhra Pradesh Amendment Act. The object is evident that if the plaintiff is put in immediate possession of the benefit by which he can raise the fund he could not be termed as a 'pauper' so as to grant leave to him to file the suit in forma pauperis. Under the amended provisions the subject-matter has to be excluded. But as the subject-matter in this suit cannot be construed as comprehending the entire property but only the right of tenancy the snit premises cannot be taken as the subject-matter of the suit.12. The contention of Mr. Seetharamayya the learned counsel for the petitioner is that the suit premises itself is not involved in the suit and any benefit accruing therefrom cannot be excluded in determining whether the plaintiff is an indigent person or not is well-founded. It is equally relevant to note that the object of the amendment as is born out by the statement of objects and reasons of amending Act is to enable a person to sue as an indigent person the scope of the means of the applicant is being substantially liberalised and for that purpose the subject-matter of the suit has to be excluded. It can nevertheless be held that the entire house property itself not being the subject-matter of the suit cannot be excluded in determining whether the plaintiff is an indigent person.13. The evidence of P.W. 1 is to the effect that the value of the house is nearly Rs. 2 Lakhs. But it is also his evidence that the suit property was once attached for arrears of his father's income-tax and that the said attachment has also been raised. His further evidence is that they cannot raise any money on the suit premises because it is in the possession of a tenant. It may appear surprising that an amount of nearly Rupees 8500/- which is required as court-fee cannot be realised even by mortgaging the said house which right is with the plaintiffs particularly so when the tenant has not denied their title. But the evidence of P.W. 1 also remains unrebutted. That apart it was at one time attached for the realisation of the income-tax arrears of the father of P.W. 1. It is equally borne out by the averments in the plaint that from 1969 the litigation between the plaintiffs and the defendant was continuing.Thus for the last eight years immediately preceding the institution of the suit the litigation was pending. Though it can be said that by mortgaging the suit premises of the value of Rs. 2 Lakhs it may not be difficult to raise a paltry sum of nearly Rs. 3500/- required for paying the court-fee it is equally possible to say that no purchaser would come forward when the tenant is asserting his right to continue in possession. Similarly it cannot be said that any mortgagee would accept this house unless it be for a paltry sum. That apart no prospective buyer would purchase worry and litigation by entering into any sale transaction with the plaintiffs. The trial Court accepted the evidence of P.W. 1 and held as against these circumstances it cannot be presumed that the requisite court-tee can be raised by the plaintiffs. That is a question of fact.14. It is rightly contended by the respondent's counsel that in accepting the evidence of P.W. 1 the trial Court did not commit any error of jurisdiction and therefore no interference is warranted under the provisions of Section 115 Civil Procedure Code. It is held in Hindustan Aeronautics v. Ajit Prasad AIR 1973 Supreme Court 76 that where the lower appellate Court's order is within its jurisdiction the High Court should not interfere even if the order is right or wrong or in accordance with law or not unless it has exercised its jurisdiction illegally or with material irregularity. It can be repeated that no rebuttal evidence has been let in by the defendant to contradict the evidence of P.W. 1. The order of the trial Court was perfectly within its jurisdiction. The acceptance of the evidence of P.W. 1 cannot be said to be perverse having regard to the antecedent litigation which is pending for the last eight years and also due to the fact that the very house stood at one time attached for the recovery of income-tax arrears due by the father of P.W. 1.15. Though it was contended by Mr. Seetharamayya the learned counsel for the petitioner that the title of the plaintiff is not disputed and that his right to effect a sale of the property is still available or that the right to mortgage the suit premises is available to the plaintiff so as to raise necessary funds for the purpose of paying the court-fee it is not a matter of mere presumption that comparatively smaller amounts on the security of this house which is of considerable value could be raised. As already noticed above any prospective buyer would not purchase worry and litigation even though the saleable interest in the property vests in the plaintiffs.16. In the ruling reported in Virupakshiah v. Shivalingaiah AIR 1960 Andhra Pradesh 540 it was held : It cannot be assumed that a person who is entitled to a share in the joint family property of considerable value could always be able to raise comparatively smaller amounts on its security and when the property does not consist of cash the test is not whether the person has a power in the abstract of raising money but whether in the concrete circumstances of the case he could succeed in raising any thing substantial by exercising that power. It is also held therein that in each case evidence would be necessary to enable one to judge whether money could be raised on the properties. It can be repeated that there is not a shred of evidence on behalf of the defendant to show that there were any intending bidders to purchase this suit premises in spite of the earlier attachment or in spite of the tenant squatting in possession of the same and in spite of the litigation for the last eight years. The evidence of P.W. 1 that even by mortgaging this property the amount required for court-fee cannot be raised remains unrebutted. In accepting the evidence of P.W. 1 it cannot be said that the trial Court acted perversely or with material irregularity to warrant interference by way of revision.17. It was further the grievance of the learned counsel for the petitioner taking advantage of the amended provisions the plaintiffs have exaggerated their claim on account of damages and also the rate at which the future mesne profits are claimed and that in the event of the success of the plaintiffs the defendant would be burdened with payment of the entire court-fee regardless of the suit being decreed on account of past and future mesne profits only in part I am afraid that this contention is not well-founded. Order 33 Rule 10 as amended lays down that where the plaintiff succeeds in the suit the amount of court-fee which he would have paid on the plaint shall be recovered by the State Government from any party ordered by the decree to pay the same and that will be a first charge on the subject-matter of the suit. Thus where a plaintiff succeeds in part only it is open to the Court to decree the suit with proportionate costs. It cannot therefore be said that the defendant will be saddled with the costs on account of an exaggerated claim even though the plaintiffs ultimately succeed in part only.18. For all the aforesaid reasons I hold that no interference is called for. The revision petition fails and is accordingly dismissed with costs.Petition dismissed.