Suppression of assets by a plaintiff seeking to sue as an indigent person indicates capacity to pay court fees, justifying rejection of the application.

JUDGMENT :

This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred as ‘CPC’ for short], by the plaintiff in O.S. No.922 of 2011 on the files of the Principal Sub Court, Kollam, assailing rejection of plaint for non-payment of balance court fee and the order dated 27.08.2014 in I.A. No.1982 of 2013 in the above suit, whereby the petition filed by the appellant herein under Order XXXIII Rules 1 and 2 of CPC, was dismissed. The appellant herein is the plaintiff and the respondent is the defendant in the above suit.

2. Heard the learned counsel for the appellant and the learned counsel appearing for the respondent. Perused the verdict under challenge and the records of the trial court.

3. Parties in this appeal shall be referred as “plaintiff” and “defendant” with reference to their status before the trial court.

4. In this matter, the suit has been filed for realization of an amount of Rs.11,63,600/- with interest from the defendant. At the time of filing the suit, the plaintiff had remitted Rs.11,149/- being 1/10 of the court fee payable. Then, he was directed to pay the balance court fee to the tune of Rs.1,00,339/-. On such direction, the plaintiff filed I.A. No.1982/2013, stating that he had no means to pay the balance court fee. Therefore, he sought permission to sue as an indigent person without paying the balance court fee. According to the plaintiff, he has no regular employment and income to pay the balance court fee.

5. This plea was opposed by the defendant, contending that the plaintiff is the owner of an extent of 93 cents of land and a hotel complex and he has been running real estate business. Therefore, the plaintiff has the capacity to pay the balance court fee.

6. In support of the contentions raised in the petition, the plaintiff got examined as PW1. Taking into account the evidence given by PW1, the trial court found that the plaintiff suppressed material aspects regarding ownership of 4.5 cent of land and also 76 cent of land and a building worth Rs.1 Crore constructed by the plaintiff, in the petition, though the said facts were admitted by the plaintiff during his examination as PW1. Accordingly, the trial court dismissed the petition finding suppression of material aspects and also holding that the plaintiff, in the said circumstances, is capable of paying Rs.1,00,339/- as court fee.

7. After the dismissal of the petition on 27.08.2014, when the plaintiff was directed to pay the balance court fee again, instead of paying the balance court fee, he had filed I.A. No.1713/2014 to keep the proceedings in the suit in abeyance, so as to enable the plaintiff to challenge the order in I.A. No.1982/2013 before this Court. But, the trial court dismissed the same and rejected the plaint, with cost of the otherside, as per the judgment dated 30.09.2014.

8. Assailing the order and judgment passed by the trial court, the learned counsel for the plaintiff argued that, as per the ratio of the decision of this Court in Basil Thomas v. Joseph reported in [2013 (2) KLJ 644], when it is shown that the litigant is unable to pay the due court fee, the provisions of Order 33 would apply and there is no rigid formula, which confines the relief under Order 33 to only persons, who are essentially striving on the poverty line. In paragraph No.3 of the Basil Thomas’s case (supra) this Court held as under:

“3. Fundamentally, the provisions in Order 33 are to be utilised, when it is shown that a litigant is unable to pay the due court fee. Those provisions apply also to payment of balance court fee. There is no rigid formula, which confines the relief under Order 33 to only persons, who are essentially striving on the poverty line. Even availability of assets or wealth does not necessarily mean that a person will have the sufficient means to pay the court fee. This provision is well settled by the Apex Court and this Court. In our view, the court below ought