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D.L. Walton v/s M/S Kirloskar Investments And Finance LTD, Rep. By Its Senior Manager, Bangalore & Others.

    Civil petition No. 114 of 2008

    Decided On, 27 November 2009

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE S. ABDUL NAZEER

    For the Petitioners: C.M. Nagabushan, Advocate. For the Respondent: N.D. Jayadevappa, HCGP.



Judgment Text

This Civil petition is filed U/O 44 Rule-1 of CPC, Praying to allow the above petition and permit the petitioner to file RFA 989/08 As An Indigent person Against the judgment and Decree Dated 20/3/2008 in Os 5818/94 Passed By The XXX Additional City Civil Judge Bangalore In the interest of the justice and Equity.


1. The petitioner has filed this civil petition under Order 44 Rule 1 of the CPC requesting this court to allow him to appeal as an indigent person.


2. The petitioner was the defendant No. 2 in O. S. No. 5818/1994 on the file of 30th Add. City Civil Judge, Bangalore City. The 1st respondent was the plaintiff and other respondents were co-defendants of the petitioner in the suit. The plaintiff/1st respondent filed the aforesaid suit for recovery of a sum of Rs. 39,85,084/- together with costs and current interest at the rate of 36% p.a. and for certain other reliefs. The court below decreed the suit directing the defendant Nos. 1 to 4,6 and 7 to pay the decretal amount to the plaintiff with costs and current interest at the rate of 12% p.a. Feeling aggrieved, the petitioner/2nd defendant has filed RFA No. 989/2008 before this Court. Along with the said appeal, he has filed the above civil petition to allow him to appeal as an indigent person.


3. In the civil petition, the petitioner has contended that he has no means to pay the court fee of Rs. 2,61,210/-. It is further contended that he is earning Rs. 5,000/- per month by giving tuition to the students of 8th to 10th standards. Except the said income he has no other income. He has tow sons studying in 11th and 12th standards respectively. It is further contended that apart from the apparels, he has a gold ring and a gold neck chain gifted by his wife at the time of his marriage the value of which is Rs. 10,000/-. He has a sofa set and a dinning table with 6 chairs, a geyser, three ceiling fans, a refrigerator, a television, a radio, 3 wooden cots, a steel almirah and kitchen utensils, the approximate value of which comes to Rs. 30,000/-. He has purchased 600 shares from UTI Mutual Fund valued at Rs. 12,000/-. In his savings bank account at South Indian Bank Limited, a sum of Rs. 6,524/- stands to his credit. He is not in a position to pay the prescribed court fee in the appeal. Therefore, he has requested this Court to permit him to appeal as an indigent person. In the schedule to the application, he has given details of his properties, the total value of which comes to Rs. 40,000/-.


4. On 16.12.2008, the learned Government Advocate was directed to submit the report with regard to the means of the petitioner. On 3.11.2009, the learned Government Advocate has produced the report of the District Collector, Eranakulam District, State of Kerala. Again, on 23.11.2009, he has produced the report of the Tahsildar, Kannayannur dated 27.4.2009.


5. Sri C.M. Nagabhushan, learned Counsel for the petitioner would contend that petitioner is not possessed of sufficient means to pay the court fee in the appeal. It is argued that the report of the Tahsildar and the District Collector would clearly indicate that petitioner does not own any immovable properties. He is eking out his livelihood by giving tuition to students of 8th to 10th standards at his native place and earning Rs. 5,000/- per month. The petition schedule properties are moveable properties, the total value of which comes to Rs. 40,000/-. Therefore, he may be permitted to appeal as an indigent person. Sri N.D. Jayadevappa, learned HCGP appearing for the State submits that admittedly, the petitioner is earning Rs. 5,000/- per month. Therefore, it cannot be said that he is not in a position to pay the court fee.


6. In the light of the arguments of the learned Counsel made at the Bar, the question for consideration is whether the petitioner is possessed of sufficient means to pay the court fee?


7. Sub-Rule (1) of Order 44 of CPC provides for filing of an appeal by an indigent person. It states that any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suits by indigent persons, in so far as those provisions are applicable. Order 33 Rule 1 of CPC provides for filling of suits by indigent persons, which is as under:


?1. Suits may be instituted by indigent person:-


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?


Explanation II and III have no application to this case.


8. It is well established that a party who applies for exemption from payment of court fee on the ground of indigence will have to satisfy the Court about one crucial ingredient alone viz, that the party does not have the capacity to pay the court fee. It is not sufficient for the party to make a bald statement to this effect. It is a requirement of law that the statement has to be substantiated to the satisfaction of the Court. The Rule does not warrant meticulous hyper-technical interpretation against a pauper applicant, but only proper and substantial compliance by him. When applicant?s right to sue as a pauper is challenged, the enquiry is as to whether he has sufficient means to pay the court fee. The words is not possessed of occurring in Explanation I contemplates not possession of property but sufficient means i.e., capacity to raise the money to pay the requisite Court fee. Capacity to raise funds would only cover all forms of realisable assets which a person can in normal circumstance convert into cash and utilise for litigation without detriment to his normal existence. What is intended is not the capacity to raise funds by any means, viz, by begging, borrowing, stealing or by hook or crook. The applicant should have the lawful meants to raise the funds


(See SMT. Mnjulata VS. Sidhkara ? AIR 2005 RAJ 32),


9. In the present case, the petitioner has given the details of the properties he is possessed of in the schedule to the petition. They are movable properties, the value of which is about Rs. 40,000/-. The report of the Tahsildar, Kannayannur dated 27.11.2008 within whose jurisdiction petitioner is staying as also the report of the District Collector dated 30.10.2009 show that petitioner does not own any immovable properties. It is also clear that the house where the petitioner is presently residing belongs to this mother-in-law. The petitioner contends that he is earning Rs. 5,000/- from giving tuition which is sufficient to take care of the day today need of his family. The court

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fee payable is Rs. 2,61,210/-. From the materials on record, it is evident that the petitioner does not possess realizable assets, which can be converted into cash for financing the litigation. Merely because he is earning Rs. 5,000/- per month which is required for his normal existence does not mean that he is possessed of sufficient means to pay the court fee. It is clear that the petitioner does not have capacity to pay the prescribed court fee. I am of the view that the petitioner should be permitted to appeal as an indigent person. 10. In the result, the civil petition succeeds and it is accordingly allowed. The petitioner is permitted to appeal as an indigent person. Registry is directed to post RFA No. 989/2008 before the appropriate Court for admission, if it is otherwise in order. No costs.
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