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2013 Supreme(Chh) 356
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Jayant Prabhakar Mahajan – Appellants
Vs.
Suman Sarde and Others – Respondent
M.A. No. 15 of 2000
Decided On : 27.9.2013
For Appellant/Petitioner/Plaintiff:Mr. Manoj Paranjpe and Mr. Vikram Dixit, Advocates.
For Respondents/Defendant:Mr. Sri Kumar Agarwal, Senior Advocate and Mr. Anand Kumar Gupta, Advocate for Respondents.
Headnote:
Code of Civil Procedure - Rule 1 - Order 43 - Trial Court - Challenging the order - Exemption from payment of Court Fee - Being aggrieved, the plaintiff/appellant preferred before the High Court of Madhya Pradesh and challenged the order said appeal was decided by the High Court of Madhya Pradesh vide order with direction to trial Court that the plaintiff/appellants prayer under Order 33 Rule 1 C.P.C. shall be considered, in accordance with, the provisions therein - Trial Court in compliance of Courts order again considered the application and passed the impugned order the application under Order 33 Rule 1 of the CPC, holding that the plaintiff has sufficient means to pay the Court fee - learned counsel appearing for the appellant/plaintiff vehemently submits that the findings recorded by the trial Court, holding that the appellant is not entitled to sue as an indigent person, is clearly bad and unsustainable in law - He further submits that the appellant/plaintiff has no sufficient means to pay the Court fees and as such he be permitted to sue as an indigent person by setting aside the order of the trial Court – Held, To sum up, the indigent person, in terms of Explanation 1 to Rule 1 of Order 33 of the Code of Civil Procedure, is one who is either not possessed of sufficient means to pay court-fee when such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court-fee is not prescribed - In both cases property exempted from the attachment in execution of a decree and the subject-matter of the suit shall not be taken into account to calculate financial worth or ability of such indigent person. Moreover, the factors such as persons employment, status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets, and persons total indebtedness 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 – Therefore expression sufficient mean in Order 33, Rule 1 of the Code of Civil Procedure contemplates ability or capacity of a person in ordinary course to raise money by available lawful means to pay court-fee - Expression not possessed of sufficient means mentioned in Explanation 1 to Rule 1 of Order 33 CPC while defining the word "indigent person" refers to plaintiffs capacity to pay the court fee prescribed by law for a plaint in such a suit - possession of sufficient means" refers to possession of sufficient realizable property which will enable the plaintiff to pay the Court Fees on plaint - If property in possession is not sufficient enough to raise money to pay the requisite Court Fees, he or she should not be deemed to be possessing sufficient means to pay Court Fees on other hand if the appellant is in possession of property sufficient enough to enable to raise amount for payment of Court Fees, he or she can be deemed to have sufficient means to pay the Court Fees and he or she would be considered to be an "indigent person - Proceedings initiated by a plaintiff under Order 33, Rule 1, CPC would be decided on the basis of pleadings. Order 33 Rule 2 provides for disclosing the entire movable and immovable properties of the plaintiff along with its estimated value - plaintiff is also to sign and verify the pleadings - Intention of disclosing the entire property of the plaintiff in a suit was to decide the matter on basis of such relevant materials – appeal dismissed
1. The appellant/plaintiff has preferred this appeal under Order 43, Rule 1(na) of the Code of Civil Procedure, challenging the order dated 3.8.2000, passed by the Second Additional District Judge, Jagdalpur in M.J.C. No. 3 of 1999, by which his application under Order 33 Rule 1 of the C.P.C. has been rejected. The brief facts for disposal of the appeal are as under:
2.1 The plaintiff filed a suit for possession and declaration of sale deed dated 1.5.1996 as null and void. The plaintiff, along with the suit, also filed an application under Order 33 Rule 1 of the C.P.C. for permission to sue as an indigent person. The said application was rejected by the trial Court vide order dated 5.1.2000.
2.2 Being aggrieved, the plaintiff/appellant preferred M.A. No. 768 of 2000 before the High Court of Madhya Pradesh and challenged the order dated 5.1.2000. The said appeal was decided by the High Court of Madhya Pradesh vide order dated 28.4.2000 with the direction to trial Court that the plaintiff/appellant's prayer under Order 33 Rule 1 C.P.C. shall be considered, in accordance with, the provisions therein. The trial Court in compliance of the Hon'ble Court's order again considered the application and passed the impugned order dated 3.8.2000, rejecting the application under Order 33 Rule 1 of the CPC, holding that the plaintiff has sufficient means to pay the Court fee.
2.3 In the course of enquiry, a report of the Collector was also obtained by the trial Court. The report of the Collector dated 14.12.1999 clearly records that in the name of the plaintiff/appellant there is a land in Rautpara, Jagdalpur bearing nazul sheet No. 48, plot No. 64/6, area 1050 square feet and the market value of said land is Rs. 75,600/-. The plaintiff is also a pensioner and getting Rs. 1458/- per month.
2. Shri Manoj Paranjpe, learned counsel appearing for the appellant/plaintiff vehemently submits that the findings recorded by the trial Court, holding that the appellant is not entitled to sue as an indigent person, is clearly bad and unsustainable in law. He further submits that the appellant/plaintiff has no sufficient means to pay the Court fees and as such he be permitted to sue as an indigent person by setting aside the order of the trial Court.
3. Replying the contentions made by learned counsel for the appellant, Shri Sri Kumar Agarwal, learned Senior Counsel, ably assisted by Shri Anand Gupta, learned counsel strenuously submits that the appellant/plaintiff is guilty of suppression of material facts, as while making the application under Order 33 Rule 1 of the C.P.C. for leave to sue as indigent person, the appellant/plaintiff was obliged to detail all moveable and immoveable properties with estimated value thereof, and those should have been signed and verified as per the manner prescribed. He further submits that the report of the Collector clearly indicates that the appellant/plaintiff has property, other than the suit property, worth Rs. 75,600/- as per the valuation made in the year 1999 and it cannot be said that he is an indigent person, having no sufficient means to pay the court fees.
4. I have heard learned counsel for the parties and considered the rival contentions made by them.
5. I have also perused the papers available on record, including the Collector's report, submitted pursuant to the order of the trial Court. A bare perusal of the report of the Collector would show that the appellant/plaintiff has land in Rautpara, bearing nazul sheet No. 48, plot No. 64/6, area 1050 square feet and the market value of which was Rs. 75,600/- in the year 1999 and the same was not included by the plaintiff/appellant in the list of properties owned by him, while submitting the application under Order 33 Rule 1 of the CPC before the trial Court.
6. Order 33 Rule 1, 2 and 5 of CPC provides as under:
1. Suits may be instituted by indigent person--Subject to the following provisions, any suit may be instituted by an indigent person.
Explanation 1.--A person
