Court fees eligibility under Order 44 requires substantial proof of indigence; merely failing to produce sufficient evidence may lead to dismissal of claims for exemption.

JUDGMENT

The original petition has been filed challenging an order whereby the Additional District Court-IV, Thrissur rejected IA.No.2695 of 2018 in POP No.179 of 2018 in AS.No.94 of 2018 filed by the petitioner seeking permission to prosecute the appeal as an indigent. According to the petitioner, the court fee payable was Rs.1,28,648/- and an amount of Rs.13,781/- was payable as legal benefit fund and he did not have sufficient means to pay the court fee. He contends that the immovable property belonging to him already stands attached by the trial Court in the suit and he is the only bread winner of the family and he is running a small stationery shop, the income from which is only sufficient to meet his day to day expenses. He also contends that he has no other source of income and he has not disposed of any properties within six months before the presentation of the petition.

2. The respondent filed a counter statement denying the allegations in the petition. According to the respondent, there are several criminal cases pending against the petitioner for realisation of money and as he has committed fraud, he is not entitled to the benefit of Order 44 of Code of Civil Procedure . The respondent has stated that the petitioner has a large stationery, vegetable and provision store from which, he is earning more than Rs.1 lakh per month and that he is also having real estate business.

3. The Court below after considering the evidence on record held that, the petitioner has not produced sufficient material to arrive at a finding that he is a person of no means. The court noted that even though the petitioner claims to be conducting a small shop, no evidence has been let in to show the income that is being generated from the shop. Even the approximate income from the shop has not been stated. The shop and the movables have not been attached and the petitioner’s business has not been affected. The petitioner has been examined as PW1 and he submitted that he is having an income of Rs.2,000/- per month excluding the monthly expenditure received from the shop. However, no documents showing the volume of the business or the income were produced. The Court also noted that the petitioner did not even produce the licence relating to the shop. The court below relied on the judgment of the Hon’ble Supreme Court in Mathai M Pakeday vs. C.K Antony ( AIR 2011 3221 ) wherein the Hon’ble Supreme Court refused to grant permission to sue as an indigent since the petitioner therein did not produce the bank account details to prove the financial assistance from his son. The court also noted that in the case on hand also the bank account details were not produced.

4. In this original petition, this Court had directed the petitioner to produce an affidavit to the effect that he does not have any bank account in his name and his family member’s name or to file the details of the bank account. Thereafter, the petitioner has filed IA.No.4 of 2025 producing Exts.P11 and P12. Those are the account statements of two bank accounts maintained in the name of the petitioner. The petitioner submits that the relevant pages of the account would show that he did not have sufficient money to pay the Court fee. The counsel for the petitioner also relied on the judgments of Division Bench of this Court inRajamma Joseph vs. Binu Prasad and Others [ 2010 KHC 99 ] andPaulose @ Paulo vs. Elias K.Varghese and Another [ 2012 (1) KHC 754 ] in support of his contention that law does not expect a petitioner who claims to be an indigent, to make a distress sale of his only property and pay the Court fee and thereafter live in penury or abject poverty. The proposition is well established. The only question is whether on the facts of the case, the findings of the Court below are