Hukumchand vs Kailash - 1988 Supreme(MP) 564

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : R.C. Mukati.
For the Respondent: L.N. Varma.

Headnote:(1)Civil Procedure Code, 1908 – O. 33, R. 1 and 8 – suppression of property not mala – fide and also not sufficient to pay Court – fees – application cannot be thrown out.
       (2)Civil Procedure Code, 1908 – S. 115 – revision – finding of fact – not open to revision – no failure of justice – interference not permissible.
        Short Note
       1. In the revision, learned counsel for the petitioners submitted that the application ought to have been dismissed as the applicants have not come bona – fide and they have not disclosed the sufficient means, which they were possessed of. He read statements of the witnesses and placed before me the certified copies of the statements of witnesses examined by the parties. In respect of the contention, learned counsel Shri Mukati, appearing for the applicants relied upon the case of M.L. Sethi vs. R.P. Kapoor, AIR 1972 SC 2379 and submitted that enquiry into pauperism is not exclusively in the matter before the Court between the applicants and the State. As such the Courts below were not right in allowing the application without payment of Court fees.
       2. Shri Mukati, learned counsel further submitted that as the applicants have suppressed the facts in their schedule annexed with the application, the trial Court ought to have dismissed the application. In support of his contention, learned counsel relied upon the case of Punjab High Court reported in Samyukta vs. Prem Kumar Madan and Others, AIR 1974 Punj. 203 and Patna High Court reported in Dulhin Suraj Mukhi Devi and Others vs. Jokhu Raj and Others, AIR 1972 Pat. 313.
       3. Learned counsel, Shri Verma, appearing for the non – applicants, indigent persons, submitted that learned trial Court has allowed the application after due appreciation of evidence and there is no illegality or material irregularity committed by the trial. Court, no interference is called for in revision. Learned counsel for the indigent persons, also relied upon the case of Shri M.L. Sethi (Supra) to support his contention. He further submitted that after due enquiry and appreciation of evidence trial Court giving due consideration in paras 8 to 13 has allowed the permission. Learned counsel submitted that the defendants are not prejudiced in any manner if the indigent persons are permitted to prosecute the suit as indigent persons, there would be no failure of justice or irreparable injury is likely to be caused to defendants. Hence, no interference be made in revision.
       4. After considering the arguments of the respective parties, I am of the view that this revision deserves to be dismissed. Learned counsel for the petitioners could not satisfy me that even in case, there is non – disclosure of sufficient means in the application under Order 33, Rule 1 of the Code of Civil Procedure and the schedule annexed therewith, the application should be thrown out. Trial Court after considering the property, which is said to have been in possession of indigent persons, came to the conclusion that such property is not sufficient or indigent persons are not possessed of such sufficient means to pay the Court fee. Trial Court has considered about the said property in para 11 and 12 of its order, after due consideration of the same, application has been allowed under Order 33, Rule 8 of the Code of Civil Procedure, for being numbered and registered as plaint in the suit.
       5. After consideration of facts not disclosed, the permission has been granted by the trial Court. The said facts were also considered by me. The house which is said to be in possession of non – applicants before this Court, was in fact no house but a TAPARIA in which the indigent persons are residing. The agricultural land is also not of so much of the value, whereby after disposing of same the applicants may pay prescribed Court – fee, even if, it is disposed of. In case the applicants are directed to dispose of the alleged house and the agricultural land 1½ Bhigas valuing not more than Rs. 1,500/ – the applicants will be deprived of their place of residence in whatsoever shape it is and also their livelihood by disposing of the lands. The non – disclosure or omission of sufficient means should be an act of bad faith or deliberate intention or mala – fide, then only the application can be thrown out or rejected. In clause (a) of the Explanation (1) of Order 33 Rule 1, possession of property is not enough but of sufficient means and the Court has to enquire to raise money from such means and not actual possession of the property, The possession should be of sufficient realiable means, which will enable the plaintiff to pay Court fee on the plaint. A person may be possessed of the property but not possessed of sufficient means to pay Court fee, and it has to be ascertained from the facts to particular case.
       6. In this case, trial Court after ascertaining the facts on enquiry, held that applicants are not possessed of sufficient means to pay Court fee prescribed by law. Trial Court did not find an act of bad faith or deliberate intention or an act as mala – fide by not disclosing the property in the schedule. The learned counsel appearing for the defendant also could not point out even by reading evidence before me that this non – disclosure was an act of mala – fide intentional or deliberate. The finding as to means "to pay the Court fee" is a finding of fact which is not ordinarily open to revision. No perversity has been pointed out, nor it has been pointed out that the finding is vitiated by any material irregularity in exercise of its jurisdiction. Hence, the order granting leave to sue in forma pauperis does not call for any interference. [See case of M.L. Sethi, (Supra)]. Thus, the application for granting permission cannot be thrown out merely for the fact that some property was not disclosed in the schedule. Another aspect of the matter is that according to clause (b) of proviso to Sub. S (1) of S. 115 of Civil Procedure Code, no order under revision shall be reversed or varied, if it does cause any failure of justice or cause any irreparable injury to the party against whom it is made. AIR 1972 SC 2379 followed, AIR 1974 Punj. 203 and AIR 1972 Pat. 313 referred to. Revision dismissed.