(1.) The appellants-defendants and pro forma respondents-defendants Nos. 2 to 4 suffered a decree for the recovery of Rs. 26,166.90. In order to challenge the decree, the appellants-defendants filed an application under O. 44, C.P.C. accompanied by a Memorandum of Appeal in the Court of the District Judge, Solan, to seek permission to appeal as indigent persons. The application of the appellants-defendants was dismissed by order dated 30/07/1991 holding that they are not indigent persons and are required to pay Court-fees on or before 30/08/1991. The appellants-defendants did not pay the Court-fees and consequently their appeal was also dismissed on 30/08/1991. Hence the present Regular Second Appeal by the appellants-defendants as indigent persons for which permission has been granted by a separate order of the day today.
(2.) Refusing permission, the District Judge, had observed :-
".....The said business has since been closed down for want of working capital and that he is earning Rs. 400.00 to 500/- per month from tailoring and repair of hosiery goods. It is also in the statement that he is living in a rented house for which he is paying rent of Rs. 250.00 per month. He has also deposed that with one knitting machine, three pullovers can he knitted in a day and that he can earn Rs. 20.00 to 25/- per pull over. In other words the petitioner can earn about Rs. 60.00 to 75/- per month (sic). Calculated on this basis, the monthly earning of the petitioner would come to about Rs. 2,000.00 per month. The Court-fee payable in the present case comes to Rs. 2,497.60. Taking into consideration the entire facts and circumstances of the case, I hold that the petitioner Om Parkash is not an indigent person and he can pay the requisite Court-fee....."
(3.) Apparently for holding that the appellants-defendants are not indigent persons, the District Judge has not only drawn wrong inferences from the statement of the appellant-defendant Om Prakash but has also not applied the correct principles of law. The words "indigent person" have been defined in O. 33, R. 1, C.P.C. as under :-
"................ 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. - 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."
(4.) The words 'sufficient means' have been interpreted by a Division Bench judgment of this Court in Gehru v. Charan Dass Dogra, ILR (1981) Him pra 307 : (AIR 1982 Him Pra 23) and Chief Justice Misra (as his Lordship then wag) observed :
"5. Explanation-I to R. 1 of O. 33 of the Code of Civil Procedure defines an indigent person as one who "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 to the plaint in such suit". We are not concerned with the rest of the rule. By now it is well settled that 'possession of sufficient means' does not mean possession of sufficient property. It is possible that one may be possessed of sufficient property but still may not be possessed of sufficient means. It will depend on the nature of the property. It will also depend whether the person concerned can easily come in possession of sufficient means. All this varies from case to case."
(5.) The intention of the legislature to make provision of O. 33, C.P.C. in the words of his Lordship is (AIR 1982 Him Pra 23 p. 25) :-
"4. It is unfortunate indeed that in our socialistic democratic republic Justice is still being sold. We are still carrying on with the old colonial traditions. The doors of the temple of justice are closed to a person unless he has got sufficient money. The money is needed not only to pay the heavy Court-fee but also for the payment of getting legal assistance and meeting other sundry expenditure. Temple of justice should be open to all and sundry just like a temple of God. But the States, instead of trying to ensure free and speedy justice, are always out to increase the Court-fee. In some of the States it has become a source of revenue also. It is strange indeed that the State as a Socialistic Republic is out to mint money out of the miseries of the litigants. It is true that a provision like O. 33, R. 1 has been on the statute book for last about 100 years to enable the poor to sue in forma pauperis. But then it was never more than an eye wash. Where a person has just enough money to meet the Court-fee then he must pay the Court-fee, become literally a pauper, and then enter the gate of justice. In other words, he has practically to strip himself naked before praying for justice. Even after paying the Court-fee he has still to pay at least for summoning his witnesses and meet other sundry expenses provided he succeeds in getting free legal aid of sorts. And in the instant case the defendant, who is a practising lawyer and against whom serious allegations of fraud in depriving the appellant of his valuable property have been made, is doing his best to throw the appellant out of the Court of justice on the very threshold."
It is well settled that the provisions of O. 33, R. 1, C.P.C. have been enacted to enable poor persons to seek justice by filing suits or appeals without Court-fee and in this context, the sufficient means would not be sufficient property and includes such means on which the bare living of the plaintiff or the appellant and the members of his family is dependent. In fact, what is intended is capacity to raise funds by normal and available lawful means and not by any means whatsoever, improper or illegal. It cannot be the purpose of this legislation that the indigent person should first deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. (Please see : A. Prabhakran Nair v. K. P. Neelkantan Pillai, AIR 1988 Ker 267 and Rambhai Punjabhai Vinchiya v. The Gujarat State Road Transport Corporation, Ahmedabad, AIR 1975 Guj 94).
(6.) In the case in hand, it has been the defence of the appellants-defendants that since the respondent-plaintiff Bank failed to sanction working capital to them, their hosiery units has since been closed and they have been earning their livelihood by repairing hosiery goods, earning from which is not more than Rs. 400.00 to Rs. 500.00 per month. The District Judge was not justified in presuming that
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the appellants-defendants could earn an amount of Rs. 2,000.00 per month by running the hosiery unit and pay the Court-fee amount of Rs. 2,497.60. The statement of the appellant-defendant in respect of his earning has been corroborated by the report of the Collector, to which the District Judge did not refer to. (7.) In the result, the appeal is allowed. The decree and judgment dated 30/08/1991 passed in the Civil appeal and the order dated 30/07/1991 are set aside. The appeal is remanded to the District Judge, Solan, with a direction to restore it to its original number and decide it afresh in accordance with law. 8. Costs on parties. The parties are directed to appear before the District Judge on 19/07/1993. The records be sent hack to the District Judge, Solan, immediately. Appeal allowed.