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1987 Supreme(J&K) 84
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
G.A. Kuchhai, J.
Dilshada Bano - Appellant
Versus
Gh. Nabi - Respondent
CMP No. 151/1984
Decided On : 29 July, 1987
Advocate For Appellant: G.N. Hagroo
Advocate For Respondent: J.N. Langar
An applicant seeking to sue in forma pauperis must make a full and complete disclosure of their movable and immovable property assets. Failure to do so will result in the dismissal of the application.
Headnote:
ORDER 33 CPC - RULE 2 - INDIGENT PERSON - SUIT IN FORMA PAUPERIS - DISMISSAL OF APPLICATION - CONCEALMENT OF INCOME - NON-DISCLOSURE OF ASSETS - FATAL DEFECT.
Fact of the Case:
The applicant, a government teacher, filed an application to sue in forma pauperis, claiming to be an indigent person. The respondent, her husband, objected to the application, arguing that the applicant had concealed her income as a teacher and had not disclosed all of her assets.
Finding of the Court:
The court found that the applicant had indeed concealed her income as a teacher and had not disclosed all of her assets. The court held that this was a fatal defect in the application and that the applicant could not be declared an indigent person.
Issues: Whether the applicant was an indigent person and could be allowed to sue in forma pauperis.
Ratio Decidendi: The court held that the applicant had not complied with the provisions of Rule 2 of Order 33 CPC, which requires an applicant to file a true statement of their property and assets. The court also held that the applicant's concealment of her income and assets was a fatal defect in the application.
Final Decision: The court rejected the application and ordered the applicant to pay the requisite court fee within four weeks.
2. The applicant, has pleaded being wedded wife of the respondent, who has turned her out for not satisfying his demand for additional dowery. She having no sufficient means to defer the expenses of court fees on her claim of Rs. 1,54,874/-having to feed her children in the house of her parents and having no means. Therefore, seeking declaration to sue as an indigent person. The applicant has filed schedule of the property alongwith the application supported by an affidavit.
3. The respondent ultimately appeared and filed his objections to the application for declaring the applicant as an indigent person objecting to the maintainability of the applicaition, same being in accordance with law and the applicant being a Govt. servant receiving a salary of Rs. 1000/-having G.P. Fund, Insurance and capacity to pay the requisite court fee. That the applicant has suppressed the true facts in the application and her claim is based on incorrect facts. Further the application and list has not been properly verified, therefore, the application be dismissed.
4. In addition to certificate received from the Collector, regarding pauperism of the applicant, she has examined three witnesses namely Dr. Farooq, Hissam-ud-Din and Assad, Ullah besides her own statement.
5. The non-applicant/respondent on the other side has not produced any eviderite nor examined himself.
6. I have heard learned counsel for both the parties. The only question to be seen at this stage, is Whether the applicant can be declared an indigent person and allowed to file a suit against the respondent as an indigent person? For this purpose, we have to refer to rule(l) (a) of Order 33 CPC before the material is discussed. Rule 1 (a) which applies to this case provides that a person is an indigent person if he is not possessed of any sufficient means other than the property exempt from attachment in execution of decree and subject matter of suit to enable him to pay the fee prescribed by law for the plaint in such suit. In this case, the applicant has claimed recovery of property including money valued at Rs. 1,54,874/- and for this claim, court fee is specifically fixed, A certificate in this case is received endorsed by the Collector in the following words: -
¦¦¦¦...¦¦ I have inspected the spot. The applicant is working as Teacher in Education Department. From her salary she has to feed two minor children and arrangement for her debits which she has accrued during tier marriage for dowery. She has no any other source of income. Neither has any land, house or shop of tier own. The applicant is pauper.
Sd/-Naib Tehsildar Srinaigar 9/7
7. This shows that the applicant has neither any property nor source of income. This Certificate, however, will be appreciated in the light of oral evidence brought on record by the applicant.
Sub-rule (a) of RuLe (l) of Order 33 CPC excludes possession of property for purpose of declaring a person indigent person which is not to be attached in execution of decree. To appreciate the point regarding elimination of attachment of property in this case we are concerned only with regard to the property referred in s.60 CPC wherein salary in rule 3 (h) sub-clause, 2nd the limit of salary not attachable is to the extent of Rs. 400/- as inserted by Amendment Act XI of 1983. The applicant is not proved by any evidence of the respondent or On certificate of the Revenue Authorities possessing any immovable property attachable or non-attachable bearing any income but as in her statement before this court, she has admitted receiving a total salary of Rs.991/- as a Govt. teacher per month. According to the statement of the applicant her as a teacher are Rs.991/- per month after standard deduction of insurance, GP Fund, she is receiving Rs.771/- monthly. The applicant under law in acco
