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High Court of Karnataka
THE HONOURABLE MR. JUSTICE S. ABDUL NAZEER
D.L. Walton
Versus
M/s. Kirloskar Investments And Finance LTD, Rep. By Its Senior Manager, Bangalore & Others
Civil petition No. 114 of 2008
Decided On : 27-11-2009
CODE OF CIVIL PROCEDURE, 1908 - Order 44, Rule 1: [S.Abdul Nazeer,J] Appeal by indigent person - Application by a person who is unable to pay the Requisite Court Fee - Consideration of the application -Satisfaction of the Court - Held, 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. Further, The Rule does not warrant meticulous hyper-technical interpretation against a pauper applicant, but only proper and substantial compliance by him. When applicants 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., begging, borrowing, stealing or by hook or crook. The applicant should have the lawful means t raise the funds. On facts held, From the materials on records, it is evident that the petitioner does not possess realisable assets, which can be converted into cash for financing the litigation. It is clear that the petitioner does not have capacity to pay the prescribed Court fee. Hence, the petitioner is permitted to appeal as an indigent person.
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 two 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
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