Mathai M. Paikeday Vs.
C.K. Antony
O R D E R
H.L. Dattu, J.
Delay condoned.
1.
Leave
granted.
2.
These
appeals, by special leave, are directed against the common final order passed
by the High Court of Kerala at Ernakulam in C.M.C.P. Nos. 53 and 60 of 2004
dated 11.08.2008, whereby the High Court has allowed the petitions and has permitted
the respondent to prosecute the appeals as an indigent person.
3.
The
brief factual matrix relating to these appeals :- The appellant had filed two
suits for recovery of money against the respondent, who is a retired Deputy
Conservator of Forest drawing a pension of `10,500/-. These suits were decreed
in favour of the appellant. Being aggrieved, the respondent had preferred Regular
First Appeals before the High Court of Kerala along with petitions to prosecute
the said appeals as an indigent person under Order 44 Rule 1 of the Code of
Civil Procedure, 1908. The High Court of Kerala, without holding any inquiry as
contemplated under Order 33 Rule 1A of the Code of Civil Procedure, permitted
the respondent to institute the said appeals as an indigent person, against
which a special leave petition was preferred before this Court. This Court remanded
the matter to the High Court for passing fresh orders after conducting an inquiry
in accordance with Order 33 Rule 1A of the Code of Civil Procedure.
4.
Subsequently,
the High Court after conducting the inquiry into the means and financial capacity
of the respondent, has permitted the respondent to prosecute Regular First
Appeals as an indigent person vide its order dated 11.08.2008. Aggrieved by the
same, the appellant is before us in these appeals.
5.
The
issue involved in the present appeals for our consideration is: Whether the respondent
is an indigent person as not possessed of sufficient means to pay the court fees
and, consequently, entitled to avail the benefits under Order 44 of the Code of
Civil Procedure.
6.
Shri.
Jawahar Lal Gupta, learned senior counsel, appears for the appellant and the respondent
is represented by Shri. Subramonium Prasad, learned counsel.
7.
The
learned senior counsel Shri. Jawahar Lal Gupta submits that the respondent has
admitted during the inquiry before the High Court that he is a retired Government
employee and receives `10,500/- by way of pension and also receives money from
his son who is employed in a foreign country. The learned senior counsel
further submits that the respondent had failed to produce passbooks of his bank
account in order to deny the fact of receiving money from his son. In other
words, the failure of the respondent to produce bank accounts and passbooks
amounts to suppression of the fact of receiving substantial amount of money from
his son. The learned senior counsel further argues that the respondent is having
sufficient means to pay court fees and is not entitled to prosecute the Regular
First Appeals before the High Court as an indigent person in terms of Order 44
Rule 1 of the Code of Civil Procedure.
8.
These
arguments of the learned senior counsel for the appellants were refuted by
Shri. Subramanion Prasad, the learned counsel for the respondent, who supported
the impugned final order of the High Court.
9.
Order
33 of the Code of Civil Procedure deals with suits by indigent persons whereas
Order 44 thereof deals with appeals by indigent persons.
10.
Order
33 Rule 1 of the Code of Civil Procedure provides for instituting of suits by
indigent person, stating: "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.--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."
11.
Order
44 of Code of Civil Procedure provides for instituting an appeal as an indigent
person. The provision reads :- "1. Who may appeal as an indigent person - 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 person, in so far as those provisions are applicable."
12.
The
object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are
to enable a person, who is ridden by poverty, or not possessed of sufficient means
to pay court fee, to seek justice. Order 33 and Order 44 of the Code of Civil
Procedure exempts such indigent person from paying requisite court fee at the first
instance and allows him to institute suit or prosecute appeal in forma
pauperis.
13.
In
A.A. Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736, this Court has
observed: "5. ... Access to justice cannot be denied to an individual merely
because he does not have the means to pay the prescribed fee."
14.
In
Union Bank of India v. Khader International Construction, (2001) 5 SCC 22, this
Court has held: "20. Order 33 CPC is an enabling provision which allows
filing of a suit by an indigent person without paying the court fee at the initial
stage. If the plaintiff ultimately succeeds in the suit, the court would calculate
the amount of court fee which would have been paid by the plaintiff if he had
not been permitted to sue as an indigent person and that amount would be recoverable
by the State from any party ordered by the decree to pay the same. It is further
provided that when the suit is dismissed, then also the State would take steps
to recover the court fee payable by the plaintiff and this court fee shall be a
first charge on the subject- matter of the suit. So there is only a provision
for the deferred payment of the court fees and this benevolent provision is intended
to help the poor litigants who are unable to pay the requisite court fee to file
a suit because of their poverty. Explanation I to Rule 1 Order 33 states that an
indigent person is one who is not possessed of sufficient amount (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. It is further provided that where no such fee is prescribed, if such
person 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 he would be an indigent person."
15.
In
R.V. Dev v. Chief Secretary, Govt. of Kerala, (2007) 5 SCC 698, this Court has
held: "8. Order 33 of the Code of Civil Procedure deals with suits by indigent
persons whereas Order 44 thereof deals with appeals by indigent persons. When
an application is filed by a person said to be indigent, certain factors for considering
as to whether he is so within the meaning of the said provision are required to
be taken into consideration therefor. A person who is permitted to sue as an indigent
person is liable to pay the court fee which would have been paid by him if he was
not permitted to sue in that capacity, if he fails in the suit at the trial or even
without trial. Payment of court fee as the scheme suggests is merely deferred.
It is not altogether wiped off."
16.
The
concept of indigent person has been discussed in Corpus Juris Secundum (20
C.J.S. Costs ' 93) as following: "' 93. What constitutes indigency: The right
to sue in forma pauperis is restricted to indigent persons. A person may proceed
as poor person only after a court is satisfied that he or she is unable to
prosecute the suit and pay the costs and expenses. A person is indigent if the payment
of fees would deprive one of basic living expenses, or if the person is in a state
of impoverishment that substantially and effectively impairs or prevents the
pursuit of a court remedy. However, a person need not be destitute. Factors considered
when determining if a litigant is indigent are similar to those considered in
criminal cases, and include the party's employment status and income, including
income from government sources such as Social Security and unemployment
benefits, the ownership of unencumbered assets, including real or personal property
and money on deposit, the party's total indebtedness, and any financial assistance
received from family or close friends. Not only personal liquid assets, but
also alternative sources of money should be considered."
17.
The
eligibility of person to sue in forma pauperis has been considered in American
Jurisprudence (20 Am. Jur. 2d Costs ' 100) as thus: "' 100. Eligibility to
sue in forma pauperis; generally: The burden of establishing indigency is on the
defendant claiming indigent status, who must demonstrate not that he or she is entirely
destitute and without funds, but that payments for counsel would place an undue
hardship on his or her ability to provide the basic necessities of life for himself
or herself and his or her family. Factors particularly relevant to the
determination of whether a party to a civil proceeding is indigent are: (1) the
party's employment status and income, including income from government sources
such as social security and unemployment benefits; (2) the ownership of any unencumbered
assets, including real or personal property and monies on deposit; and finally (3)
the party's total indebtedness and any financial assistance received from family
or close friends. Where two people are living together and functioning as a
single economic unit, whether married, related, or otherwise, consideration of their
combined financial assets may be warranted for the purposes of determining a
party's indigency status in a civil proceeding."
18.
To
sum up, the indigent person, in terms of explanation I to Rule 1 of Order 33 of
the Code of Civil Procedure, is one who is either not possessed of sufficient
means to pay court fee when such fee is prescribed by law, or is not entitled
to property worth one thousand rupees when such court fee is not prescribed. In
both the cases, the property exempted from the attachment in execution of a
decree and the subject-matter of the suit shall not be taken into account to calculate
financial worth or ability of such indigent person. Moreover, the factors such as
person's employment status and total income including retirement benefits in the
form of pension, ownership of realizable unencumbered assets, and person's
total indebtness and financial assistance received from the family member or
close friends can be taken into account in order to determine whether a person
is possessed of sufficient means or indigent to pay requisite court fee. Therefore,
the expression "sufficient means" in Order 33 Rule 1 of the Code of
Civil Procedure contemplates the ability or capacity of a person in the
ordinary course to raise money by available lawful means to pay court fee.
19.
Admittedly
the respondent is a retired Deputy Conservator of Forest, Government of Kerala and
drawing a pension of `10,500/-. It was also stated by him in his deposition
before the High Court on 03.01.2008 that his son is employed abroad and does not
regularly send him money and in response to a suggestion, whether his bank account
discloses the amount of money sent by his son, he does not deny the suggestion.
However, it is noteworthy to mention that respondent has never denied that his son
sends him money. Furthermore, the respondent had failed to establish that the amount
of money received from his son is not substantial or insufficient to pay court
fee by not producing passbook of his bank account. In our considered opinion,
non-production of bank account transaction details, amounts to suppression of
the facts and in view of this, an adverse inference can be drawn against the
respondent that he is receiving a substantial or sufficient amount of money
from his son. Therefore, the amount of money received by the respondent from his
son and by way of pension amounts to a sufficient means to pay court fee which
disentitles him to be an indigent person under Order 33 Rule 1 and Order 44
Rule 1 of the Code of Civil Procedure.
20.
In
the light of above discussion and facts and circumstances of the present case, the
respondent cannot be declared as an indigent person in order to prosecute Regular
First Appeals before the High Court. Accordingly, the present appeals are allowed
and the impugned final order of the High Court dated 11.08.2008 is set aside. However,
the respondent is granted 45 days time from today to deposit the court fee if
he desires to prosecute Regular First Appeals filed before the High Court. Costs
are made easy.
...........................J.
[G.S. SINGHVI ]
...........................J.
[H.L. DATTU ]
New
Delhi,
July
11, 2011
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