The main legal point established in the judgment is that the provisions of Order 33 Rule 1 of the Civil Procedure Code are intended to permit poor and indigent persons to seek justice without payment of court fee, without being deprived of their sole means of livelihood or alienating all their assets.

1. Instant miscellaneous appeal is directed against the order dated 12.09.2005 passed by 1st Additional District Judge, Raipur, in M.J.C. Case No. 3/2005 whereby and whereunder the plaintiffs' application filed under Order 33 Rule 2 of CPC has been dismissed.

2. Brief facts of the case are: Plaintiffs filed a suit for possession valued at Rs. 15,20,000/- against the respondents. As per plaint averment a court fee of Rs. 1,81,600/- was payable. Therefore, the plaintiffs sought permission of the Court to file suit as an indigent person.

3. After noticing respondents, enquiry was conducted by the trial Court under Order 33 Rule 1(A) of the CPC. The trial Court having found the plaintiffs' monthly income appears to be not less than Rs. 12,000/- per month, dismissed the application. Hence this appeal.

4. Shri Vivek Rathore, learned counsel appearing for the appellants would submit: as per income certificate granted by Tahsildar the income of the entire family of the plaintiffs is only Rs. 3,000/- per month; appellants are 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 them to pay the fee of Rs. 1,81,600/-; as per their evidence, adduced during enquiry, plaintiffs' family income is Rs.2,400/- per month and, therefore, the findings recorded by the trial court that the plaintiffs' income is Rs. 12,000/- per month is perverse and the order impugned deserves to be set aside and the appellants/plaintiffs may be permitted to sue as an indigent person.

5. Per contra, Shri Sameer Uraon, learned counsel appearing for respondents supported the order impugned and submitted in the facts and circumstances of the case, the trial Court has rightly dismissed the plaintiffs' application and the order impugned does not call for any interference.

6. Shri G.D. Vaswani, Govt. Advocate for the State is also heard.

7. I have heard learned counsel appearing for the parties and perused the order impugned.

8. The expression "not possessed of sufficient means" mentioned in Explanation I to Order XXXIII rule 1, CPC while defining the word "pauper" refers to plaintiffs' capacity to pay the Court-fee prescribed by law for the plaint in such a suit. What is contemplated is not possession of the property but sufficient means with capacity to raise money to pay the Court-fee. Mere possession of ornaments or a plot is not sufficient. If the property in possession of the appellants is not sufficient enough to raise money to pay the requisite Court-fee, he or she should not be deemed to be possessing sufficient means to pay the Court fee and, hence, the Court can take him/her as "pauper" under this rule.

9. The High Court of Madhya Pradesh in case of Fulabai w/o Chhaganlal and another Vs. State of MP. and others, 1998(1) MPLJ 486, while interpreting the provisions of Order 33 Rule 1 in the context of Article 39-A of the Constitution of India has held:

"The provisions of Order 33 of the Civil Procedure Code have been enacted for the purpose of allowing a person to sue as indigent, if he happens to be unable to pay the Court fee. Provisions do not mean that the indigent person should sell out all his property and put himself without any source of livelihood. That does not mean that he should sell the house and all belongings and should come on road for the purpose of paying the Court fee. Merely because a person has retired it cannot be said that therefore he can pay the Court fee from his pension, P.F. and gratuity amount. The State never desires to deprive such a retired employee from such source of livelihood after retirement. The Court fee can be recovered from defeated plaintiff in accordance with legal process. In border line cases attitude of Courts should be broad minded. In democracy right to approach the Court for legal relief should not be denied on the ground of poverty. That is why the Constitution has taken care of that by making provisions of legal aid. Court