Venkatesh Iyer vs Bombay Hospital Trust and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 130

IN THE HIGH COURT OF BOMBAY
Dr. Pratibha Upasani, J.
Venkatesh Iyer ..... Plaintiff.
Versus
Bombay Hospital Trust others .... Defendants.
Notice of Motion No. 589 of 1998 in Suit No. 714 of 1992, decided on 27-2-1998.
Advocates appeared :
Mihir Desai with Ms. Adenwala, for the plaintiff.
Ketan Parikh with Gautam Mehta i/b Kanga Co., for defendant Nos. 1 2.
D.V. Merchant with Snehal Shah i/b Dhru Co., for defendant No. 3.

Headnote:Section 60, Order XXXIX, Rules 1 and 2, Order XXXIII, Rules 1 and 9-Declaration as pauper-Due to negligence, hospital sued for Rs. 46 lacs by petitioner-Allowed to sue as pauper-Challenged-Ground-Suppression of facts-Contention-Permission to sue as pauper cannot be challenged-Held-As per Rule 9, permission can be withdraw.-Defendants Advocates have vehemently argued that by suppressing this material from the Court plaintiff has displayed improper conduct within the meaning of sub-clause (a) of Rule 9 of Order XXXIII of the Code of Civil Procedure and that he has played fraud upon the Court. In Courts opinion technically there is nothing to disagree with the submissions of the defendants Advocates P and M. It has to be concluded that the conduct of the plaintiff was certainly improper in not coming out clean as far as assets were concerned.
       Order XXXIII, Rule I-Explanation 1 (Bombay amendment)Indigent person mean person not having sufficient means-Allowing medical expenses from such means not legal.-If one interprets the word indigent person as defined in Order XXXIII, Rule 1 read with Explanation of the Bombay Amendment, a person is indigent person if :
       (a) He is not possessed of sufficient means (other than property exempted from attachment in the execution of the 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 a…….
       Therefore, what has to be excluded from the term sufficient means is the property which is exempted from attachment in execution of a decree under Section 60 of the Code of Civil Procedure and the subject-matter of the suit. Nothing else has to be considered. A person cannot be heard to say that because his expenses are more, his mean have become less thereby, or that his means have become less because he spent more money. Therefore, the plaintiff could not be called an indigent person within the meaning of Rule I, Order XXXIII of Code of Civil Procedure.
       Order XXXIII, Rule 9-Dispaupering of indigent person-Material facts suppressed-Fraud played on Court-Improper conduct due to nondisclosure of fact in the matter of nonpayment of court-fees.-It is clear that the plaintiff has indeed not disclosed in a plaint and in the Schedule Ex. II, the true state of affairs whereby he was exempted from paying Court fees which caused loss to the Exchequer. This conduct can certainly be said to be improper within the meaning of Order XXXIII, Rule 9(a).
       Order XXXIII, Rule 9, Rule 1-Explanation 1 (Bombay Amendment)-Permission sought by plaintiff to sue defendants in forma pauperis under Order XXXIII, Rule 1-Non-availability of sufficient means-Sought to sue as indigent person-withdrawal of permission granted at any stage not illegal Medical expenses also cover sufficient means-Plaintiff not came with clean hand about payment of court fee-Plaintiff is disappeared under Order XXXIII, Rule 9.- Therefore, what has to bee excluded from the term sufficient means is the property which is exempted from attachment in execution of a decree under Section 60 of the Code of Civil Procedure and the subject-matter of the suit. Nothing else has to be considered. A person cannot be heard to say that because his expenses are more, his means have become less thereby or that his means have become less thereby or that his means have become less because he spent more money. Therefore, the plaintiff could not be called an indigent person within the meaning of Rule I, Order XXXIII of Code of Civil Procedure.
       Article 113-See Civil Procedure Code, 1908, Order I and Rule 9.

JUDGMENT - Dr. PRATIBHA UPASANI, J.:---This Notice of Motion is taken out by defendant Nos. 1 and 2 praying that the plaintiff be dispaupered under the provisions of Order XXXIII, Rule 9 of the Code of Civil Procedure, 1908.

2. The suit is filed by the plaintiff Venkatesh Iyer for declaration that the defendants/any one of them, their servants/officers etc. are guilty of treating the plaintiff with negligence, and seeking a decree for a sum of Rs. 47 lakhs as and by way of damages in accordance with the particulars of claim at Exhibit II to the petition with interest. Prayer for punitive damages also is made by the plaintiff.

3. The plaintiff had sought permission to sue the defendants in forma pauperis as per the provisions of Order XXXIII, Rule 1 of the Code of Civil Procedure, 1908. Proceedings accordingly were conducted before the Prothonotary and Senior Master as per Chapter XIII of the Rules of High Court of Judicature, Bombay on the Original Side read with Order XXXIII, Rule 1 of the Code of Civil Procedure. In these proceedings, the plaintiff was examined on oath, in which he stated that he was not possessed of sufficient means and therefore, he was applying for leave to sue as an indigent person.

4. The plaintiff has stated on oath that he did not have any source of income, that he was getting Rs. 400/- per month from the Cancer Patients' Aid Society, Bombay, but was required to spend more than Rs. 1,500/- per month for his maintenance and medical treatment. He had further stated that he did not have or own any property either moveable or immoveable. He had mentioned about a Savings Bank Account No. 5815 with the United Western Bank Limited, Borivli (West) Branch, Bombay, which showed credit balance of Rs. 269.45 paise as on 20th February, 1992. He further stated that the Schedule of Property annexed to the pauper petition was correct.

5. Defendant Nos. 1 and 2 did not participate in those proceedings before the Prothonotary and Senior Master. Defendant No. 3, however, cross-examined the plaintiff.

6. The learned Prothonotary and Senior Master by his order dated 4th March, 1992, after perusing the petition and the evidence of the petitioner given before him in support of his application for leave to sue as an indigent person, granted the necessary leave and the Pauper Petition No. 16 of 1991 was converted into a suit and was admitted on that day. The office was directed to number the suit accordingly, which came to be numbered as Suit No. 714 of 1992.

7. Recording of evidence in this suit commenced from 22nd July, 1997. Plaintiff examined himself on oath and also examined four medical experts as his witnesses. Thereafter, he closed his case, making a statement to that effect on 16-2-1998. It is at this stage, that the present application is made by defendant Nos. 1 and 2 under Order XXXIII, Rule 9 of the Code of Civil Procedure, praying that the plaintiff be dispaupered, and that, he be directed to pay the Court Fees which he was required to pay at the time when he filed the suit in the year 1992. Defendant No. 3 has not taken out any separate Motion praying for depauperising the plaintiff. However Mr. Merchant, appearing for defendant No. 3, has supported the application in toto and has not only adopted the arguments of Mr. Ketan Parikh appearing for defendant Nos. 1 2, but also made additional submissions praying that the plaintiff be depaupered and that, he be directed to pay the Court Fees as per the requirement of law.

8. The sum and substance of the affidavit-in-support of the present Notice of Motion is that during the course of cross-examination of the plaintiff, the plaintiff has made several admissions with regard to the income of the plaintiff, which go to prove that he had sufficient means to pay the Court Fees when the suit came to be filed. Reference is made to plaintiff's deposition at various pages of the Notes of Evidence to substantiate this application. Attention of the Court is drawn to the plain

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