Indigent status does not require total destitution; sufficient means must be assessed based on capacity to raise funds.

JUDGMENT

Petitioner in Original Petition (Indigent) No.1/2023 on the file of the Subordinate Judge’s Court, Sulthan Bathery, has filed this appeal aggrieved by the rejection of the application filed under Order XXXIII Rule 1 of the Code of Civil Procedure .

2. According to the appellant, respondents/defendants offered to sell a property of the 2^nd respondent to the appellant and a sale agreement was executed on 9.2.2011. The total consideration fixed was Rs.1,50,67,500/-. Appellant had given Rs.10,00,000/- as advance consideration. On 24.2.2011 and 7.5.2011, Rs.20,00,000/- each were paid to the 1^st respondent, the power of attorney holder of the 2^nd respondent. These payments were endorsed on the reverse side of the agreement. The appellant entered into another agreement with two others on the strength of the agreement executed between him and the 1^st respondent for sale of the same property for a higher consideration.

3. According to the appellant, on 9.2.2011, he was detained and the agreement was forcefully taken from him by the respondents and the persons who entered into the subsequent agreement with him. He was forced to sign several papers and also on the reverse side of the agreement. Though he approached police, no case was registered. Appellant claims that he is entitled to get back Rs.50,00,000/- paid towards sale consideration. He is liable to pay Rs.8,42,200/- as court fee and Rs.1,23,800/- as Legal Benefit Fund for lodging the suit.

4. Appellant states that now he is unemployed. He has only 20 cents of land and no income is generated from the said property. He had a Toyota Innova vehicle, purchased by borrowing money. The car was of 2010 model. It is submitted by the learned counsel for the appellant that the said vehicle was later sold and the amounts were utilized for clearing the debt and for treatment of the wife of the appellant. It was stated in the application filed before the trial court and in the proof affidavit that the appellant has no means to pay the court fee and the Legal Benefit Fund.

5. In the proof affidavit, he further stated that he is now residing with his brother and as he is constantly taking care of his father whose right leg was amputated, he is not in a position to engage in any income-generating activity. His wife is also unemployed.

6. The appellant was cross-examined by learned counsel for the respondents. However, nothing was brought out to discredit the version regarding indigency. On the side of the appellant, Exts.A1 to A7 were marked.

7. The learned Sub Judge, after hearing both sides, dismissed the petition. The learned Judge noted that the appellant is a person of 45 years of age without any health issues. He is capable of doing any work. The learned Judge found that he has earning capacity. The learned Judge also noted that though the car was sold by him during the pendency of the proceedings, he did not care to pay the initial court fee out of the amount received. It was also noted that no document showing treatment of the wife and loan claimed to have been obtained for buying the vehicle were produced. In conclusion, the learned Judge found against the appellant and rejected the application by the impugned order.

8. Heard the learned counsel for the appellant and perused the pleadings and records.

9. In Paulose @ Paulo v. Elias K.Varghese and another [ 2012 (1) ILR (Ker) 972 ], a Division Bench of this Court held referring to two earlier judgments as under:-

“4. An indigent person need not be one bereft of all material possessions of value. The Code confers the benefit on persons without 'sufficient means'. It refers not, to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain whether he is capable of raising the court fee in normal circumstances