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IN THE HIGH COURT OF KARNATAKA

AT BENGALURU

DATED THIS THE 6^TH DAY OF FEBRUARY 2021

BEFORE

THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

CIVIL PETITION No.269/2015

IN

R.F.A. No.1467/2015

Between:

Sri M.N. Manohar,

S/o Sri M.S.A. Narayan,

Aged about 77 years,

Residing at No.1200, 8^th Cross,

Girinagar,

Bangalore - 560 085.

… Petitioner

(By Sri Ajith Kalyan, Advocate)

And:

Sri Augustine D' Lima,

S/o Sri John F.D.L'ima,

Major,

Residing at No.307,

Rahja Regent, 35, Coles Road,

Bangalore - 560 005.

… Respondent

(By Smt. Sunitha H. Singh, Advocate for

Sri R.I.D'sa, Advocate

Smt.Sweta Krishnappa, AGA)

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This Civil Petition is filed under Order XLIV Rule 1 of

CPC, praying to

prosecute the regular first

appeal

No.1467/2015 without payment of court fee, in the interest

of justice and equity.

This Civil Petition coming on for Admission this day,

the Court made the following:

ORDER

The petitioner who is defendant No.1 before the trial

Court has sought permission under Order 44 Rule 1 of

C.P.C. to prefer an appeal, viz., RFA No.1467/2015 as an

indigent person without paying the court fee.

2.

The petitioner submits that he was defendant

No.1 before the trial Court in the proceedings instituted in

O.S.No.1309/2002 by the respondent-plaintiff seeking

recovery of money. It is further submitted that the

petitioner herein had raised various defences on merits,

without consideration of the defences, a decree is passed.

3.

The petitioner submits that he is required to pay

the court fee of Rs.2,32,669/- in order to prosecute the

Regular First Appeal against the judgment and decree in

O.S.No.1309/2002. The petitioner submits that he does not

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have any income as on date and is aged about 82 years. It

is submitted that the petitioner does not have any moveable

and immoveable property in his name and is living with his

son and daughter-in-law.

4.

It is further submitted that the property in which

the petitioner is residing belongs to his son. It is further

asserted that despite making efforts, there is no possibility

of raising funds to pay the court fee, as his son is unwilling

to financially assist the petitioner. It is further submitted

that the petitioner has no funds and is barely able to meet

his medical and living expenses. This Court, by order dated

07.12.2018 had directed the State Government to file a

report regarding the financial status of the petitioner. The

report has been filed on behalf of Government as per the

memo dated 08.04.2019, which records the assertions as

made out in the petition. The report of the Revenue

Inspector dated 06.02.2019 is also part of the record. In

light of the said report, a communication has been

addressed

to

the

Additional

Government

Advocate

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reiterating the contents of the report of Revenue Inspector

on 12.03.2019 which has been filed alongwith the memo

dated 08.04.2019.

5.

Learned counsel for the respondent has opposed

the petition and submits that the petitioner has not

disclosed as to how he has dealt with the assets and there

is no disclosure as regards his current financial position. It

is further submitted that the petitioner had immoveable

assets which he has sold in the year 2004 and received the

sale consideration.

6.

It is submitted that no information is forthcoming

as to the manner of utilisation of sale proceeds obtained

earlier. However, taking note of the affirmation of petitioner

that as on date he is not in possession of funds and also

taking note of the explanation regarding his ailment and

treatment for cancer and that it is more than 15 years since

the sale is stated to have taken place, there is no reason to

doubt the assertion of the petitioner. The report submitted

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by the Revenue Inspector also corroborates the stand of the

petitioner.

7.

It is also noticed that there was further enquiry

of the petitioner befo