IMPORTANT POINT
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.

ORDER

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