The court clarified that the assessment of indigency under Order XXXIII Rule 1 CPC considers the applicant's ability to raise funds for court fees, not merely their lack of wealth.

ORDER

The challenge in this Original Petition is to the order dated 17.02.2021 in I.A.No. 330/2017 in O.S.No.4/2016 on the file of the Subordinate Judge’s Court, Thodupuzha.

2. The defendants in the suit challenge the order of the trial Court grating permission to the plaintiffs to sue as an indigent persons, as provided in Order XXXIII Rule 1 CPC.

3. The plaintiffs instituted the Original Suit for damages and injunction. The suit was valued at Rs.32,00,500/-. The balance Court fee payable was worked out at Rs.3,18,430/-. Plaintiff No.1 pleaded that he is not possessed of sufÏcient means to pay the balance court fee. He stated that the only item of immovable property owned and possessed by him is 1 acre 32 cents of land, covered by sale deed No.2187/98 of SRO Pothanicadu. He availed a series of financial loan from different banks offering his property as security. He entered into an agreement with the defendants in relation to slaughter tapping of rubber trees in the property. Plaintiff No.1 pleaded that due to the unilateral violation of the agreement in question, the entire loan transactions fell due and the bank had initiated proceedings against him and the immovable property referred to above. Therefore, plaintiff No.1 sought to sue as an indigent person.

4. The defendants resisted the application, contending that plaintiff No.1 is possessing sufÏcient means to pay the balance court fee. The defendants further stated that plaintiff No.1 had sold his 47.95 ares of land for a total consideration of Rs.45,00,000/-.

5. The Court below considered the rival contentions and permitted the plaintiffs to pursue the suit as indigent persons.

6. Plaintiff No.1 gave evidence as PW1. He deposed that he owned only 14 cents of property as of now. He further stated that he had 1 acre 18 cents of property out of which he sold the remaining extent in the month of December 2016. PW1 stated that the consideration for the property sold was only Rs.5,00,000/-which he had to pay for clearing a debt of Rs.22,26,147/- in the bank. Exts.A1 and A2 series were marked on the side of the plaintiffs to prove their case.

7. The defendants raised a contention that plaintiff No.1 had acquired Rs.50,00,000/- by selling the property. He had an annual income of Rs.5,00,000/- and a car worth Rs.10,00,000/-. The trial Court scanned the evidence and came to the conclusion that the property sold by plaintiff No.1 was intended to be utilized for clearing his debts with the bank where he had mortgaged the property in his ownership.

8. The Court below also came to the conclusion that the payment of court fee is merely a matter between the plaintiffs and the State and no prejudice would be caused to the contesting defendants. The question as to whether a person is indigent or not in the inquiry under Order XXXIII Rule 1 CPC was considered by a Division Bench of this Court inJagadamma v. Sheela and Another [ 2021 (3) KHC 167 ]. The Division Bench, relying on M.L. Sethi v. Shri. R. P. Kapur (AIR 1972 SC 2379), observed thus:-

“21. In this context, it is relevant to mention that the inquiry into the question whether a person is indigent or not cannot be reduced to the level of a matter exclusively between him and the State Government. In other words, the opposite party, who will be called upon to answer the plaint also has a right to show that the applicant is not in forma pauperis. It is a valuable right available to a person against whom the suit is instituted and he can appear and contest the claim of indigency in order to avoid a possible frivolous or vexatious litigation. In genuine cases, pauperism shall not be an obstacle or hindrance in the way of a litigant pursuing a legal remedy. On the other hand, the rights of parties, who are likely to be adversely affected by false or frivolous suits experimentally laid without paying the requisite court fee, should be respected. “

9. Therefore, the finding of the trial Court that the question of payment of court fee is exclusively