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1986 Supreme(Del) 177
High Court Of Delhi
SANTOKH SINGH - Appellant
Versus
JAGDISH - Respondent
Interim Application 3297 of 1985
Decided On : 04/08/1986
I.C.JAIN
A person is not considered indigent for the purpose of Order 33 Rule 1A of the Code of Civil Procedure if they have assets that can be used to raise funds for litigation, even if those assets are co-owned with others.
Headnote:
ORDER 33 RULE 1A - INDIGENT PERSON - SECTIONS 13, 14 - INTERPRETATION - COURT'S DISCRETION - CO-OWNERSHIP OF PROPERTY - SALE DEED - EVIDENCE OF NON-ACTION - DISMISSAL OF APPLICATION TO SUE AS INDIGENT PERSON:
Fact of the Case:
Plaintiff sought permission to institute a suit as an indigent person. The Registrar, after an ex parte hearing, concluded that the plaintiff was indigent and directed the suit to be registered. The defendant filed an application to set aside the Registrar's order, arguing that the plaintiff was not indigent as he co-owned a property and had sold another property to a close relative but the sale deed was not acted upon.
Finding of the Court:
The court found that the plaintiff was not an indigent person as he had a share in a property that could be mortgaged or sold to raise funds, and that the sale deed of the other property was not acted upon, as evidenced by the plaintiff's subsequent application for an electricity connection and rent receipt as the owner of the property.
Issues: 1. Whether the plaintiff was an indigent person entitled to sue as such under Order 33 Rule 1A of the Code of Civil Procedure. 2. Whether the Registrar's order declaring the plaintiff as an indigent person was valid.
Ratio Decidendi: 1. The court held that the plaintiff was not an indigent person as he had a share in a property that could be mortgaged or sold to raise funds, and that the sale deed of the other property was not acted upon, as evidenced by the plaintiff's subsequent application for an electricity connection and rent receipt as the owner of the property. 2. The court held that the Registrar's order declaring the plaintiff as an indigent person was not valid as it was based on an ex parte hearing and did not consider the defendant's objections.
Final Decision: The court set aside the Registrar's order and dismissed the plaintiff's application to sue as an indigent person.
( 1 ) IN IPA 21/84 the plaintiff sought permission to institute the suit as an indigent person. By the order dated 26th September. 1984 an enquiry into the matter by the Registrar was directed. The Registrar after giving notice to the Delhi Administration as well as to the defendant decided the application on 3rd May, 1985 expressing the opinion that the petitioner is an indigent person and is not in a position to pay the requisite court fee. This conclusion was arrived at by the Registrar exparte because en the date on whi ch the matter was heard there was no appearance For the defendant. She was also under the impression that no reply had been filed to the plaintiff s application though in fact a reply had been filed on 10th April, 1985. The Registrar purported to decide IPA 21/84 accordingly. This came before the Court on 13th May. 1985 when the learned Judge acting upon the report of the Registrar directed the suit to be registered and the defendant to be summoned.
( 2 ) WHEN this defendant appeared he filed I. A. 3297/85 slating that he did not appear before the Registrar on 29th April, 1985 due to a borafide mistake and also praying that the order of the Registrar dated 3rd May, 1985 in IPA 21/84 should beset aside. Strictly speaking, IPA 21/84 could have been decided only by the Court on the terms of order 33 rule I A and the Register s decision was only a report submitted to the Court that the plea of the plaintiff could be accepted. In view of this notice of the present application, I A. 3297/85 was given to the plaintiff and further proceedings taken. When the matter came up before the court after notice a statement by the plaintf was recorded. A witness from the Municipal Corporation of Delhi was examed on 29th July. 1985 The plaintiff was thereafter permitted to produce affidavit evidence and his affidavit was taken on record on 23rd August, 1985. The defendant was allowed to cross examine the plaintiff I on the affidavit of 23rd August, 1985. The evidence of the defendant was recorded on 25th September, 1985 and the matter now comes up for final decision. At this stage there is no appearance on behalf of the plaintiff I, therefore, dispose of the application after hearing counsel for the defendant.
( 3 ) THE defendant s contention is that the plaintiff is not an indigent person for two reasons. The first is that the plaintiff is admittedly a co-owner having a share in a property bearing No. 8/10, Tilak Nagar, New Delhi. The plaintiff admits that he has I/4th share in the house the value of which is estimated at Rs. 75. 000. 00. The second ground of objection take on behalf of the defendant is that the plaintiff is the owner of a house bearing No. WZI, Hind Nagar, New Delhi.
( 4 ) IT appears to me that both these contentions are well founded. So far as the first is concerned, as I have already mentioned, the plaintiff himself admits that he has I/4th share in the property at Tilak Nagar. No reasons are adduced as to why or how the plaintiff will not be in a position to raise any monies by the mortgage or sale of the said share. Counsel for the defendant has brought to my notice the following decisions, namely, Prem Kumar and others v. Lalo Girdhari Lal and others (AIR 1940 Oudh 208) ; Rojinder Singh and others v. Karnal Central Co-operative Bank Ltd. , Karnal and others (AIR 1965 Pun. 331) ; and Harisingh Isharsingh v. Chandansingh Pratapsingh and another (AIR 1968 Born. 380) in support of his proposition that the possession of property cannot be ignored for purpose of order 33 merely because it is a property held by the plaintiff as co-owner with others. There is, therefore, substance in the contention urged on behalf of the defendant that the plaintiff cannot be said to be an indigent person so long as he has a share in this property and there are means by which he can raise funds against the property.
( 5 ) IN regard to the property No. WZI, Hind Nagar, New Delhi, the plaintiff admits that the
