Back
2018 Supreme(Kar) 1228
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAGHVENDRA S. CHAUHAN, B.M. SHYAM PRASAD, JJ.
V.R. Nagendra Gupta S/o Late V. Rajagopala Setty – Appellant
Versus
Vinyas Construction Pvt. Ltd – Respondent
Regular First Appeal No. 1019 of 2017
Decided On : 15-11-2018
Advocate Appeared:
For the Appellant : Sri. G.L. Vishwanath.
For the Respondents: Smt. Rashmi Jadhar, Sri. Vasanth V. Fernandis, Sri. T. Rajaram, Sri. Harsha M.
Headnote:
Code of Civil Procedure, 1908 - section 151 - Rule 1 - Order XLIV - Agreement of sale - Transaction - Claim to sue as forma pauperism - Application is filed by appellant Order Rule read with section of Code of Civil Procedure permission to institute appeal as an indigent person - According to appellant does not own any property except movable properties mentioned in schedule attached with application - Movables mentioned in schedule are only clothes and personal effects and are valued by appellant – Held, Further it is admitted by appellant in cross examination during enquiry before Registrar Judicial that commercial shop property - Photograph of which property is confronted to appellant - Was purchased in year when appellants son was only aged years –However appellant contends that this property was purchased sale deed in name of his son who was minor represented by his mother appellants wife and that this property is in occupation tenant - Appellant is silent about what is arrangement in so far as this property between himself his wife and his son and why this asset is not an unrealizable asset -This further strengthens existence of common interests and mutual interdependence and assistance between appellant and his family members -It further proves reluctance to place all material on record by appellant – Crucially aforementioned circumstances - Continued sharing of residential property subsisting common interests and undeniable interdependence and assistance indicate that appellant with assistance of his son who is medical practitioner would have necessary financial ability or capacity to raise money in ordinary course from available lawful means to pay requisite court fee – Further fact that these circumstances were not pleaded and had to be ferreted out during an enquiry constrains this Court to conclude that appellant has not approached Court with clean hands - Order accordingly
ORDER :
ON I.A. No. 1/2017
1. This application is filed by the appellant under Order XLIV Rule 1, read with section 151 of the Code of Civil Procedure (for short ‘CPC’) seeking permission to institute the appeal as an indigent person. According to the appellant, he does not own any property except the movable properties mentioned in the schedule attached with the application. The movables mentioned in the schedule are only clothes and personal effects and are valued at Rs. 3,500/- by the appellant.
2. The appellant filed an application under Order XXXIII Rule 1 of CPC seeking permission to sue as a forma pauperis, for specific performance of agreement of sale deed 1.4.1997 executed and registered in his favour for conveyance of title to 21 residential plots described in the application schedule. The appellant asserted that he had paid the entire sale price for such residential plots. The appellant annexed a Valuation Slip to the application according to which the appellant was required to pay a court fee of Rs. 2,15,580/- on the plaint. The application was registered as P. Miscellaneous No. 10/2004. The notice of such application was caused to the respondent No. 1, who resisted the appellant's prayer for permission to prosecute the suit as forma pauperis. However, during the enquiry on the appellant's prayer to prosecute the claim as forma pauperis, the respondent No. 1 filed IA V under order XXXIII Rule 5(e), read with Section 151 of CPC seeking permission to deposit the court fee of Rs. 2,15,580/- on behalf of the appellant.
3. In support of this application in IA V, the respondent No. 1 contended inter alia that the transaction vide the agreement of sale dated 1.4.1997 was a money transaction, and not a sale transaction. In fact, the respondent No. 1 was willing to pay the amount due to the appellant. The respondent No. 1 further contended that the appellant was not entitled to prosecute the suit as forma pauperis. But, the delay in adjudicating on the appellant's claim to sue as forma pauperis was adversely affecting the respondent No. 1. Therefore, the respondent No. 1 was constrained to seek permission to pay the court fee of Rs. 2,15,580/- on behalf of the appellant. The appellant resisted this application by the respondent No. 1.
4. The learned Civil Court by its Order dated 4.9.2006 allowed the application in IA V permitting the respondent No. 1 to pay the court fee of Rs. 2,15,580/- (which ought to have been paid by the appellant) subject to the condition that the amount shall be accounted and adjusted at the final disposal of the case. The respondent No. 1 paid the court fee of Rs. 2,15,580/- on 7.9.2006. After the trial, the learned Civil Court by the impugned judgment and decree dated 31.1.2017 partly decreed the appellant's suit rejecting the claim for specific performance, but declaring that the appellant was entitled for a refund of a sum of Rs. 48,95,000/- along with interest at the rate of 8% per annum from the date of the suit till the date of realisation of the entire amount. However, the learned Civil Court did not order for any accounting or adjustment.
5. The appellant has filed this appeal impugning the judgment and decree dated 31.1.2017. As stated above, the appellant, along with the appeal memorandum, has filed IA No. 1/2017. In the affidavit filed in support of this application, he has asserted that as of the date of the institution of the suit, the appellant had only Rs. 475/- in his account with South Indian Bank, Bangalore. He was permitted to prosecute the suit as an indigent person; accordingly, he did not pay any court fee. The appellant, as of the date of the presentation of the appeal, does not even hold such account with South Indian Bank; the only assets he possesses are as mentioned in the Schedule to the application. Therefore, the appellant continues to be an indigent person.
6. This Court while issuing notice to the respondents on IA No. 1/2017, issued notice of this application to the State
