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2009 Supreme(Mad) 3114
HIGH COURT OF MADRAS
K. K. SASIDHARAN, J.
S. K. SAMY AND SONS
VS.
S. MOORTHY
C. R. P. (P. D.) No. 4286 of 2008
Decided On: AUGUST 12, 2009
The judgment emphasizes the importance of full and accurate disclosure of the applicant's properties, the duty of utmost good faith, and the discretionary nature of the order for exemption from court fee under Order 33, Rule 1 CPC.
Headnote:
in forma pauperis - Court Fee Exemption - Order 33 Rule 1 CPC - Summary
Fact of the Case:
The first respondent filed a suit against the revision petitioners seeking a sum of Rs. 1,37,18,205/- with future interest and cost. He also filed an application to sue in forma pauperis under Order 33, Rule 1 CPC, claiming inability to pay the court fee due to lack of means.
Finding of the Court:
The trial judge allowed the application, finding the first respondent lacked sufficient means to pay the court fee. The revision petitioners challenged this decision, arguing that the first respondent had undisclosed properties and suppressed material facts.
Issues: The main issue was whether the first respondent was entitled to exemption from paying court fee under Order 33, Rule 1 CPC, considering his financial status and the disclosure of his properties.
Ratio Decidendi: The court emphasized the requirement for full and accurate disclosure of the applicant's properties and the duty of utmost good faith in the matter. It also highlighted the discretionary nature of the order for exemption from court fee and the role of the Collector in determining the indigent status.
Final Decision: The court set aside the previous order and remanded the matter to the trial judge for fresh consideration, directing the District Collector to submit a report on the first respondent's financial status. The trial judge was instructed to consider the issue on merits in light of the report and allow the first respondent to amend the petition schedule if necessary.
( 1 ) THIS civil revision is directed against the order dated 4-7-2008 in POP No. 28/2004 on the file of the learned I Additional District Judge, Erode whereby and whereunder, the application preferred by the first respondent to file a suit in forma pauperis was allowed. The facts in outline :
( 2 ) THE first respondent has filed a suit originally before the Subordinate Court, erode against the revision petitioners praying for a Judgment and Decree directing them to pay a sum of Rs. 1,37,18,205/- with future interest and cost.
( 3 ) THE first respondent has also filed an application in POP No. 28/2004 invoking order 33, rule 1, CPC to permit him to file the suit as indigent.
( 4 ) IN the affidavit filed in support of the application in POP No. 28/2004. it was the case of the first Respondent that he was forced to close down his business on account of the fraudulent act committed by the revision petitioners. He was not possessing any stock and no amount was due to him from anybody else. According to him, except the property which was described in the schedule to the petition, he has no other property in his possession. The immovable property shown in the schedule valued about Rs. 14 lakhs was subjected to hypothecation in favour of Karur Vysya Bank and he was liable to pay more than Rs. 15 lakhs to the said bank. Therefore, he was not in a position to pay the Court fee which made him to file an application to sue in forma pauperis.
( 5 ) THE application was resisted by the revision petitioners by filing counter. According to them, the petitioner was in possession of sufficient movable and immovable properties worth more than Rs. 4 crores. In the additional counter affidavit filed subsequently by way of amendment, it was further contended that the petitioner was having a property at Veerappan Chatham. Erode, very near to bus stand, cost of which would be about Rs. 2 crores. The Judgment of the Judge :
( 6 ) THE learned Trial Judge was of the view that the first respondent was not having sufficient means to pay Court Fee. According to the learned Judge, the amount which is stated to be in the possession of the first respondent was not sufficient to pay the Court fee. Accordingly, the application was allowed. It is the said Order which is impugned in the Civil Revision Petition. Submissions :
( 7 ) THE learned Senior Counsel appearing on behalf of the revision petitioner has taken me through the pleadings to substantiate his contention that the material averments in the pleadings as well as evidence tendered by the first respondent was overlooked by the learned Trial Judge while deciding the application.
( 8 ) ACCORDING to the learned Senior Counsel for the petitioner, even as per the evidence tendered by the first Respondent, he was having a sum of Rs. 9,62,792. 69 with him and as such, the learned Trial Judge erred in observing that the said amount was not sufficient to pay the Court Fee. The learned Senior Counsel further contended that the entire property which belonged to the first Respondent was not shown in the schedule and as such, he was not entitled to the benefits of an equitable provision like Order 33. Rule 1 cpc. The learned Senior Counsel also contended that during his evidence as PW-1, the first Respondent has admitted about certain items of properties which were not disclosed in the schedule and as such, the first Respondent was guilty of suppression of material facts which would disentitle him from getting an order of exemption from payment of court Fee. The learned Senior Counsel has also placed reliance on the Judgment of this court in support of his contention that the money could be raised even by selling property and to substantiate his contention that failure to disclose the available property in the application would result in dismissal of the application.
( 9 ) THE learned Senior Counsel appearing on behalf of the respondent contended that there was no act of suppression by the first respondent so as
