Smt. Neela Vishwakarma vs Sanjay Kumar Agrawal
2021 Latest Caselaw 3405 Chatt

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                                      Order Sheet

                                  MCC No. 545 of 2020

         Smt. Neela Vishwakarma Versus Sanjay Kumar Agrawal & Others




30/11/2021         Ms. Priyanka Mehata, counsel for the appellant.

                   Ms. Hamida Siddaqui, Advocate and Shri Rahul Agrawal,
             counsel for respondents No. 1, 3, 4, 8, 9, 11 and 12.

Shri Vikas Pandey, counsel for respondent No. 2. Shri Raghvendra Verma, G.A. for the State.

Heard on MCC filed under Order 44 Rule 1 CPC seeking permission to file the appeal as an indigent person.

The present is a plaintiff's first appeal. The suit filed by the appellant/plaintiff was dismissed vide judgment and decree dated 28.02.2020 in Civil Suit No. 20-A/2014 passed by the Second Additional District Judge, Ambikapur. Along with the MCC, the appellant has also filed an affidavit in addition to providing the list of movable and immovable properties which stands in the name of the appellant.

On the previous date of hearing i.e. on 07.12.2020, this Court had directed the District Collector to submit a report upon the appellant's properties and financial position. The District Collector has since submitted his report on 30th December, 2020 giving the details of the movable and immovable properties that stands in the name of the appellant. The report of the Collector shows that the income of the appellant Smt. Neela Vishkarma is nil and that she is solely dependent upon her husband who is otherwise an employee of SECL at Bhatgaon area. The Report further shows that husband of the appellant has a monthly net income of Rs. 74,428/- and his annual income is more than Rs. 12 lakhs. The report of the District Collector is based upon the inquiry which was conducted by the Nayab Tahshildar, Bhatgaon, who has also on inquiry found that the income of the appellant herein is nil and thus the appellant prays that permission be granted for contesting the appeal as an indigent person.

Learned counsel appearing for the respondents on the other hand, opposing the application brings attention of the Bench to the report of the District Collector as also the report of the Nayab Tahshildar wherein the financial status of the appellant's husband has been reflected. Learned counsel appearing for the respondents submits that since the appellant has sufficient source of income, therefore, the permission to prefer an appeal as an indigent person should not be entertained and allowed and that the appellant should be made to pay the Court fees. Learned counsel for the respondents further submits that the inquiry report clearly reflects that the appellant is a house wife and that she is totally dependent upon the income of husband and since the husband has sufficient financial backing they cannot be declared as indigent person nor can it be construed that the appellant is a person living below the poverty line.

In the case of Vimlabai Vs. State of M.P. & Others, report in 1996 SCC OnLine MP 141 the High Court of Madhya Pradesh in somewhat similar set of fact in paragraph 6 has held as under :-

"According to the Notification a person belonging to the particular class as mentioned in the Notification if is earning less than Rs. 6,000/- per year then he would not be required to pay the Court- Fees on the plaint. The material words 'payable on plaint by the following categories of the persons whose annual income immediately preceding the date of presentation of plaint from all sources does not exceed rupees six thousand' cannot be ignored. The words 'persons' whose annual income is relation to the plaint and liability of the Court- fees would only mean the plaintiff who is party and would not include in its mischief any other person who is not party to the suit. The other key words 'from all sources' would not mean the income of any other person. The words 'from all sources' means the sources of the person who has filed the suit as the plaintiff and not the sources of the other persons who are otherwise liable for maintaining the plaintiff. The arguments of the learned counsel for the State if is accepted it would lead to a situation where benefit of the Notification cannot be given to anybody. It is in the interest of those persons whose income is less than Rs. 6,000/- per year. The person or persons would only mean the plaintiff and plaintiffs and nonelse. The approach of the learned trial Court that as the liability for maintaining the child was of husband also, therefore, his income has to be clubbed with the income of the wife, who is the plaintiff is patently erroneous, illegal and is contrary to law. In my opinion the plaintiff whose income is less than Rs. 6,000/- per year would certainly be entitle to claim benefits under the Notification. The order passed by the learned trial Court suffers with material irregularities and non-exercise of the jurisdiction which is legally vested in it by law. The order deserves to and is hereby set aside. The revision is allowed. It is ordered that the plaintiff is entitled to be exempt from payment of the Court-fees payable on the plaint filed by her. The trial Court shall proceed with the suit in accordance with law as expedi- tiously as possible."

There is yet another decision of Madhya Pradesh High Court in the case of Kapil (Minor) Vs. Dr. Shivmangal Awasthy reported in AIR 2001 M.P. 108, wherein referring to a Calcutta High Court judgment the Hon'ble Madhya Pradesh High Court has categorically held that merely because there are certain properties which are standing in the name of minors father would not come in the way of the plaintiff to content that he is an indigent person. In the like manner the wealth or other circumstances of the minor's relatives in general are not material under the Code and permitted the minor to sue as an indigent person.

It is further to be taken note of the fact that even before the Court below the appellant had moved a similar application which was allowed and the appellant was permitted to sue as an indigent person which fact has not been questioned or challenged by any of the respondents.

Further what is also reflected is that as per the Civil Procedure Code, once when an inquiry is conducted, and a person is permitted to sue as an indigent person and subsequently if he being aggrieved from the order of the trial Court prefers an appeal then there would not be any fresh inquiry required to be conducted as is envisaged under Order 44 Rule 3 (i). The only requirement is of an affidavit to be filed by the appellant stating on oath that the financial status of the appellant has not been improved in any manner from the time they had filed the suit initially.

The appellant in the instant case has filed an affidavit in support of the MCC giving details of this fact along with her application seeking permission to prefer this appeal as an indigent person.

Taking into consideration all the aforesaid facts and circumstances of the case and also the judicial pronouncements referred to in the preceding paragraphs, we are of the opinion that a strong case for allowing the MCC has been made out. Accordingly, the MCC stands allowed, the appellant is permitted to prefer the present appeal as an indigent person.

Registry is directed to ensure that the appeal is registered as a first appeal and the matter be listed for admission thereafter.

Meanwhile, the records of the Court below be also called.

                         Sd/-                                     Sd/-
                   (P. Sam Koshy)                           (Rajani Dubey)
                       Judge                                   Judge




H.L. Sahu