Karnataka High Court
Sri M N Manohar vs Sri Augustine D' Lima on 6 February, 2021
Author: S.Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 6TH 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, 8th 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)
2
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
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
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
by the Revenue Inspector also corroborates the stand of the
petitioner.
7. It is also noticed that there was further enquiry
of the petitioner before the Registrar (Judicial). The sworn
statement of the petitioner reiterating the contents of the
petition shows that he is residing in the house of his son
and that he has no income and has been suffering from
throat cancer and has spent whatever money he had for the
medical treatment in light of his ailment.
8. It is further asserted that he has no moveable or
immoveable property and that his son is looking after his
treatment. It is also submitted that the petitioner is neither
an income tax assessee nor is in a position to raise the
funds.
9. Taking note of the said submission recorded
before the Registrar (Judicial) and taking note of the report
of Revenue Inspector as affirmed by the Special Tahsildar,
Bengaluru South Taluk, Bengaluru, in his communication
dated 12.03.2019, it is clear that the petitioner does not
possess moveable or immoveable assets. It is also clear
that the petitioner does not have any funds nor is in a
position to raise the funds to enable him to pay the court
fee of Rs.2,32,669/-.
10. Taking note of the enquiry that has been made
and the sworn statement, a case is made out for allowing
the petition.
11. Accordingly, the petition is allowed. The
petitioner is permitted to prosecute R.F.A.No.1467/2015 as
an indigent person. It is made clear that, if there is any
change in circumstance by virtue of which the petitioner
comes upon the income or funds, the order passed is
subject to variation.
12. Registry to post RFA No.1467/2015 before the
appropriate Bench forthwith in light of urgency pleaded.
13. It is noticed that this court by order dated
25.07.2016 had granted an interim order.
14. In light of allowing of civil petition, the petitioner
is entitled for continuance of the said interim order for a
period of four weeks from the date of release of this order
to enable him to obtain necessary orders in the appeal, i.e.
R.F.A.No.1467/2015.
Sd/-
JUDGE
VGR
