Sri A.S. Girigowdar vs Smt Girija K S
2021 Latest Caselaw 1461 Kant

                              1


           IN THE HIGH COURT OF KARNATAKA
                    AT BENGALURU

      DATED THIS THE 28TH DAY OF JANUARY 2021

                          BEFORE

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

              CIVIL PETITION No.113/2020
                           IN
                  R.F.A. No.1070/2019

Between:

Sri A.S.Girigowdar
S/o S.B.Girigowdar
Aged about 65 years
R/at "Shivakrupa Nilaya"
Mathodu Cross,
Sowlanga Road
Opposite to Agricultural College
Rathnakara Nagar
Shivamogga Taluk - 573 201.
                                     ... Petitioner

(By Sri V.F. Kumbar, Advocate)


And:

1.     Smt.Girija K.S.
       W/o Jagadeesh N.S. @
       Jagadeesh Nuchina
       Aged about 39 years
       R/at C/o Siddalingappa
       Abbalagere Village and Post
       Shivamogga Taluk - 573 201.
                                2


2.   The State of Karnataka
     by its Principal Sec.
     Department of Revenue
     M.S.Office Building
     Dr.Ambedkar Veedi
     Bangalore - 560 001.

3.   The Deputy Commissioner
     Shivamogga Dist.
     Shivamogga - 573 201.
                                           ... Respondents

(By Smt. Shwetha Krishnappa, AGA for R2 & R3;
V/o dated 22.12.2020, service of notice to R1
is held sufficient)

                            *****

     This Civil Petition is filed under Order XLIV Rule 1 of

CPC, praying to permit to file the appeal, i.e. RFA

No.1070/2019 as an indigent person before this Hon'ble

Court, challenging the judgment and decree passed by the

learned Prl. Senior Civil Judge and CJM at Shivamogga in

O.S.No.153/2014 dated 02.02.2019 as an indigent person,

in the interest of justice and equity.



     This Civil Petition coming on for orders this day, the

Court made the following:
                                     3


                                  ORDER

The petitioner has filed this civil petition seeking

permission to file the appeal, viz., R.F.A.No.1070/2019 as an

indigent person. The petitioner proposes to challenge the

judgment and decree dated 02.02.2019 passed in

O.S.No.153/2014 by the Court of Principal Senior Civil Judge

and CJM, Shivamogga.

2. The petitioner states that he was arrayed as

defendant in O.S.No.153/2014 instituted by the respondent

No.1 herein seeking to recover a sum of Rs.17,72,500/- with

future interest at the rate of 18% per annum from the date of

suit till realisation.

3. It is further submitted that the suit has been

eventually decreed on 02.02.2019 directing the petitioner

herein who is the defendant to pay a sum of Rs.17,72,500/-

with cost and simple interest at the rate of 12% per annum

from the date of suit till realisation.

4. The petitioner submits that the plaintiff-respondent

No.1 had paid the court fee of Rs.99,400/- and as of filing the

appeal the petitioner is required to pay Rs.1,39,771/- and that

the petitioner has no means to pay the said court fee. The

petitioner has declared that he possesses a house property in

Shivamogga and the said property has been offered as

security for the loan taken from State Bank of India.

5. The petitioner has further stated that he is a

retired government employee and drawing pension of

Rs.23,000/- per month and apart from the expenses of

maintaining his family, the amount that he saves is not

sufficient to pay the court fee.

6. After the petition was filed, a report was called

from the Government as per the order dated 17.07.2020. The

records would indicate that the revenue authorities have

enquired into the financial status of the petitioner. The

communication by Tahsildar, Shivamogga to the Deputy

Commissioner dated 04.09.2020 reveals that the petitioner

owns a property bearing Khatha No.324 at Sl.No.195, which is

the RCC residential structure.

7. It is further submitted that loan has been taken on

the said property and that the petitioner does not have any

other property apart from the house referred to above. The

report also reveals that there are certain moveables, including

the home appliances. The report states that the petitioner is

getting a pension of Rs.22,800/- per month.

8. The matter was referred for enquiry as per the

order dated 06.01.2021 to the Registrar (Judicial), High Court

of Karnataka. The petitioner has subjected himself to the

cross-examination and no material contrary to the assertion of

petitioner is made out that would demonstrate that the

petitioner has means to pay. The petitioner had made

assertions in his examination-in-chief on the same lines as

made in the present petition.

9. It is noticed that the assertions of petitioner as

regards to the possession of property and receipt of pension

are corroborated by the report of revenue authorities which

are available in the file.

10. Insofar as the possession of residential house is

concerned, it is noticed from the records furnished by way of

memo dated 17.10.2020 that the residential house in the

subject-matter of proceedings is being proceeded against for

recovery in the proceedings under Section 13(2) of

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act 2002 (SARFAESI). Copy

of the demand notice is enclosed alongwith the memo dated

17.10.2020. The possession notice under Rule 8(1) of

Security Interest (Enforcement) Rules, 2002 which has a

reference to the residential house is also enclosed at page-6 of

the memo.

11. It is also noticed that apart from immoveables

which is a residential house, which is the subject matter of

proceedings under the SARFAESI Act, the petitioner does not

own any other property. The moveable property even if

liquidated is not sufficient to realise funds to enable the

payment of court fee.

12. Taking note of the material that is available and

also the enquiry report of revenue authorities, it is clear that

the pension the petitioner draws is not sufficient to enable him

to pay the court fee that is required to pay, i.e. Rs.1,39,771/-

and clearly, the material on record would indicate the

indigency of the petitioner and absence of property or funds to

enable him to pay the court fee. It is made clear that if the

petitioner were to come upon the income or means to pay, he

is required to bear the court fee.

13. Taking note of Order 44 Rule 1 of CPC, a case is

made out to allow the petition. Accordingly, the civil petition

is allowed permitting the petitioner to prosecute the

proceedings in R.F.A.No.1070/2019 as an indigent person.

14. Registry to post RFA No.1070/2019 before the

appropriate Bench forthwith in light of urgency pleaded.

Sd/-

JUDGE

VGR