Access to justice cannot be denied to an individual merely because they lack the means to pay the prescribed fee.

DAYA CHAUDHARY, J.

1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned orders dated 21.4.2016 and 10.5.2016 (Annexures P-4 and P-5) passed by learned Additional District Judge, Ambala whereby the application for seeking permission to file appeal as pauper has been dismissed.

2. Briefly the facts of the case are that plaintiff-respondent filed a suit for specific performance of agreement to sell on the basis of agreement to sell dated 31.5.2004 for 10 Marlas of land claiming that out of total sale consideration of Rs. 3 lacs, an amount of Rs. 2,50,000/- was paid as earnest money. The petitioner was having only 5 marlas of land as per revenue record and there was no occasion for her to enter into an agreement to sell regarding 10 marlas of land.

3. During pendency of the aforesaid suit, one Surinder Kumar filed a suit for specific performance of agreement to sell on 8.10.2004 against petitioner on the basis of agreement to sell dated 24.12.2003. Petitioner-defendant is an old widow lady suffering from many old age ailments, facing litigation without any source of income. To meet out her day to day as well as litigation expenses, she sold 4 Marlas of land including constructed area on 19.7.2007 to one Chander Kanta. Suit of respondent-plaintiff was decreed on 8.11.2013 only to the extent of refund of Rs. 2, 50,000/- with 6% interest. Defendant-respondent filed appeal challenging judgment and decree before the Lower Appellate Court along with an application for seeking permission to file appeal as an indigent person. A report was called by the Lower Appellate Court from Collector, Ambala, to know the status of the petitioner wherein the petitioner was stated to be a very poor lady, living in a rented house, having no children and requiring help. Still, the application seeking permission to file appeal as a pauper was dismissed and thereafter appeal was also dismissed as the petitioner could not deposit ad-valorem court fee. In the present revision petition, orders dated 21.4.2016 and 10.5.2016 passed by the learned Additional District Judge, Ambala have been challenged.

4. Learned counsel for the petitioner submits that the report of the Collector has not been taken into consideration while deciding the application seeking permission to pursue the appeal as an indigent person and subsequently appeal was also dismissed for not depositing the advalorem court fee. Learned counsel also submits that as per Order 33, Rule 1 CPC, the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee is to be considered. The financial condition of the petitioner was clearly mentioned in the report of the Collector but same has not been taken into consideration by the Lower appellate Court. Learned counsel also submits that it has been held in various judgments of this Court as well as of Hon'ble the Apex Court in the case of A.A. Haja Muniuddian v. Indian Railways, (1992) 4 SCC 736, that "Access to justice cannot be denied to an individual merely because he/she does not have the means to pay the prescribed fee." Moreover, no prejudice is going to be caused to the plaintiff-respondent in case the petition is allowed and she is permitted to pursue her appeal as a pauper.

5. Heard arguments of learned counsel for the petitioner and have also perused the impugned orders.

6. The facts relating to filing of suit, filing of appeal being aggrieved by judgment and decree passed by the trial Court, and application seeking permission to pursue the appeal as pauper by the present petitioner are not disputed.

7. Admittedly, the petitioner filed appeal against judgment and decree dated 18.11.2013 passed by the learned Additional Civil Judge, Sr. Division, Naraingarh as suit filed by the respondent-plaintiff was decreed to the extent of refund of earnest money of Rs. 2,50,000/- along with interest @ 6% per annum from the date of filing