Kerala High Court
Jagadamma vs Unknown on 7 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943
FAO.No.114 OF 2020
AGAINST THE ORDER IN IOP 5/2017 DATED 06-11-2020 OF SUB
COURT, MUVATTUPUZHA.
APPELLANT/PETITIONER IN I.O.P/PLAINTIFF IN PROPOSED SUIT:
JAGADAMMA, AGED 85 YEARS,
W/O.RAMAKRISHNAN NAIR, AND D/O.KALYANI AMMA,
KRISHNAVIHAR @ KOCHUKOYICKAL HOUSE,
KUTHUKUZHY KARA, KUTHUKUZHY P.O.,
KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT,
PIN 686 691.
BY ADVS.
SRI.P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
RESPONDENTS/RESPONDENTS IN I.O.P/DEFENDANTS IN PROPOSED
SUIT :
1 SHEELA, AGED 64 YEARS,
W/O.SASEENDRANATH,
GEETHANJALI HOUSE,
VALAYANCHIRANGARA KARA,
VALAYANCHIRANGARA P.O.,
RAYAMANGALAM VILLAGE,
KUNNATHUNADU TALUK,
PIN-683 356.
FAO No.114 of 2020 2
2 ASHA, AGED 47 YEARS,
W/O.SATHEESHKUMAR V.K.,
AJITH BUILDING, OPPOSITE OF BALAJI COMPLEX,
RAILWAY COLONY ROAD, AKATHETHARA VILLAGE,
KALLEKULANGARA P.O., PALAKKADU TALUK,
PALAKKAD DISTRICT. NOW RESIDING AT 9B,
ABAD BUILDING, NEAR GOVT. ARTS COLLEGE,
MARKET ROAD, THRIPPUNITHURA P.O.,
PIN 682 301.
R1 BY ADV. SRI.G.SREEKUMAR (CHELUR)
R2 BY ADV. SRI.THOMAS M.JACOB
R2 BY ADV. V.V.CHACKO
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION ON 31-03-2021, THE COURT ON 07-05-2021
DELIVERED THE FOLLOWING:
FAO No.114 of 2020 3
"C.R"
A.HARIPRASAD & ZIYAD RAHMAN A.A., JJ.
-------------------------------------
F.A.O No. OF 114 of 2020
-------------------------------------
Dated this the 7th day of May, 2021
JUDGMENT
Hariprasad, J.
No civilized society could view indigency with disdain. From
time immemorial, our ancestors too were compassionate to indigent
persons. This view was statutorily recognized for the first time in the
Code of Civil Procedure, 1882, despite the operation of the Court Fees
Act, 1870 with full vigour. When the Code of 1882 was completely
replaced by the Code of Civil Procedure 1908 (in short 'the Code') the
legislative empathy towards such persons (then described as paupers)
was actually enlarged. Under the Code, in order to qualify a person
indigent, he need not be in abject poverty. Legal requirement under
Order XXXIII Rule 1 of the Code to consider a person indigent is that he
should not be possessed of sufficient means (other than property
exempt from attachment in execution of a decree and the subject matter
of the suit) to pay the fee prescribed by law for the plaint in a suit that he
proposes to file.
2. Familial disharmony is the root cause of this litigation.
Appellant is the mother of the respondents. Appellant alleges that two
documents were caused to be executed in the names of her daughters
(respondents) by perpetrating fraud and misrepresentation regarding the
contents of the documents. According to the appellant, her daughters in
cahoots with their husbands committed the fraud and misrepresentation.
And, therefore she approached the trial court with a suit by invoking the
provisions under Order XXXIII of the Code for setting aside the two
settlement deeds alleged to have been executed by her in the names of
the respondents. As a consequential relief, a permanent prohibitory
injunction decree is also sought for.
3. Facts briefly stated are thus: Appellant is the absolute
owner in possession of the plaint A and B schedule properties having an
extent of 4 acres 56 cents and 70 cents respectively. She derived title to
these properties as per a partition deed bearing No.2007 of 1969 of
Kothamangalam SRO and purchase certificates bearing Nos.2422 of
1976 of the Land Tribunal, Kothamangalam and 6578 of 1976 issued by
the Special Tahsildar, Land Tribunal, Ernakulam.
4. Appellant's husband expired on 06.04.2016. She has a son,
who is pursuing legal profession. Respondents are married away and
they are well settled in life.
5. Appellant stated to have executed a registered Will in the
year 2006, bequeathing certain properties belonging to her in the names
of the respondents and her son. During 2016, the respondents
approached the appellant many a time requesting to settle the
properties as per the terms of the bequest so that they could enjoy the
properties in praesenti. As per the aforementioned Will, 1 acre 52 cents
each, out of a total area of 4 acres 56 cents of land, was bequeathed to
each respondent and her son. Appellant had no objection in executing a
deed of settlement in accordance with the terms of the Will. Appellant
was aged 82 years at the time of institution of suit. She, being aged and
ailing, bonafide believed that the respondents would not betray her and
therefore agreed to execute the settlement deed in tune with the Will.
Without reading over the documents and without explaining the contents
thereof, she was made to execute them by the respondents and their
husbands. Later, she came to understand that more extent of properties
had been included in the documents under challenge than agreed to
and such items were included by practising deception, fraud and
misrepresentation on her.
6. Respondents filed separate written statements denying all
the allegations levelled in the plaint. According to them, the appellant is
a literate lady and after fully understanding the contents of the
documents she executed them at her own free will. 2 nd defendant in this
suit (2nd respondent) had filed O.S.No.641 of 2015 before the Court of
Subordinate Judge, Muvattupuzha, a suit for partition of her share in the
property. Appellant's contention that the property exclusively belonged to
her is not correct. In fact, the properties were set apart in Ext.A1
partition deed as thavazhi properties for the benefit of the appellant and
her children. After filing O.S.No.641 of 2015, there were mediations at
the instance of some well wishers and as per the suggestions of the
mediators, a settlement was arrived at. As part of the settlement, all the
properties were measured out by Taluk Surveyor. Out of the total extent
of 6 acres and 56 cents of dry land and 70 cents of wet land, which
remained in the name of appellant, an extent of 2 acres was identified
as non patta dry land. After deliberations, the parties came to an
understanding regarding division of the properties by metes and
bounds. Accordingly, each respondent agreed to take an extent of 1
acre and 50 cents of out of 4 acres and 56 cents patta dry land and 1
acre out of 2 acres non patta land, on its western portion, and also 35
cents out of 70 cents wet land. It is also contended that the appellant is
in possession of 1 acre 56 cents of landed property comprised in survey
No.1126/1 of Kothamangalam Village. She is in possession of
Rs.5,00,000/- worth gold ornaments. Appellant consciously suppressed
the material fact of having such property and approached the court
claiming to be an indigent person. Therefore, indigency claim is not
bonafide and it is liable to be rejected. Respondents contended that the
suit is the machination of their brother.
7. Trial court after considering the oral and documentary
evidence accepted the contentions of the respondents and directed the
plaintiff to pay the requisite court fee in the suit. That order is under
challenge in this appeal.
8. Heard Shri P.B.Krishnan, learned counsel for appellant and
Shri G.Sreekumar (Chelur), learned counsel appearing for the 1 st
respondent and Shri T.Sethumadhavan, learned senior counsel
appearing for the 2nd respondent.
9. Learned Sub Judge did not allow the appellant to prosecute
the suit in forma pauperis mainly for the reason that she suppressed the
factum of owning 1.56 acres of dry land and gold ornaments worth
Rs.5,00,000/-. Further, she suppressed her monthly income of
Rs.25,000/-, earned out of the usufructs taken from the disputed
properties. According to the learned Sub Judge, the averments that the
appellant has no property or assets of her own, other than what is
described in the plaint C schedule, and that she is not in a position to
raise funds to pay the requisite court fee and legal benefit fund are false.
10. Relying on the report submitted by the Village Officer, the
court below held that 3.62 acres of land alone had been mutated in the
names of the respondents and the remaining property still stands in the
appellant's thandaper. Court below further held that, as per available
evidence and also from the recitals in Exts.A2 and A3 settlement deeds,
despite the transfer property in favour of the respondents, the appellant
has retained a right to take usufructs from the entire property. Further,
the appellant claims to be in possession and enjoyment of the entire
property as per the recitals in the plaint. Therefore, the court below
deduced that the appellant cannot be presumed to be without any
income, considering the extent of the cultivated property. In fact, neither
the appellant nor any one on her behalf did mount the box to testify. And
therefore her plea of indigency was rejected.
11. Sri.P.B.Krishnan contended that the approach made by the
court below is erroneous on facts and law. It is vehemently argued on
behalf of the appellant that the learned trial Judge misunderstood the
material facts involved in the case. It is pointed out that A schedule is
having an extent of 4.56 acres of dry land in Survey No.1126/1 of
Kothamangalam Village and B schedule is 70 cents of wet land in
Survey No.1127/5 of the same village.
12. Ext.A1 is the partition deed dated 29-08-1969. Admittedly,
item No.3 having an extent of 4.56 acres and item No.1 having 70 cents
in extent were set apart to the appellant. Learned counsel for the
respondents pointed out that the recitals in Ext.A1 would establish that
the properties were not set apart to the appellant exclusively, but it was
thavazhi properties. It is therefore contended that the appellant had no
absolute right over the properties. We find some force in this argument.
However, that aspect may not be relevant at this state of the
proceedings.
13. Ext.A4 patta dated 07-12-1976 is in respect of 4.56 acres.
Ext.A5 patta of the same date is in respect of 70 cents.
14. If we go through Ext.A2 settlement deed dated 16-07-2016,
said to have been executed in favour of defendant No.2, it will be clear
that item No.1 falling in Survey No.1126/1 and having an extent of 1.50
acres has been set apart to her. Item No.2 therein is 1 acre of land in the
same survey number. Item No.3 is the wet land measuring 35 cents in
Survey No.1127/5.
15. If we look into Ext.A3 settlement, alleged to have been
executed in the name of the first defendant, it will be clear that item No.1
therein is having 1.50 acres in extent and the land is included in Survey
No.1126/1. Item No.2 is 1 acre of land in the same survey number. Item
No.3 is 35 cents of wet land in Survey No.1127/5. Sri.P.B.Krishnan
contended that if we add the extents of item Nos.1 and 2 each in
Exts.A2 and A3, it can be seen that it comes to 5 acres, whereas, under
Ext.A1 partition deed and Ext.A4 patta, the extent claimable by the
appellant is only 4.56 acres. It is therefore argued that the nature of
fraud will be evident from this fact itself. We do not wish to express any
opinion with respect to the sustainability of the claim regarding fraud,
misrepresentation etc.
16. It is the contention of the appellant that item Nos.2 in
Exts.A2 and A3 are lands not mutated. That is admitted by the
respondents as well. Ext.X1 would show that only 3.62 acres is the
extent of land mutated in the name of appellant and balance extent has
not been mutated. It is also contended on behalf of the appellant that the
entire property is now covered by the disputed documents, indicating
that the appellant is out of possession of the same. Whereas, the
learned counsel appearing for the respondents would contend that this
argument is against her own pleadings in the plaint. True, the appellant
cannot be permitted to deviate from her pleadings in the plaint.
17. Before venturing to consider the correctness of the
impugned decision, we shall examine the relevant legal provisions.
Order XXXIII of the Code deals with suits by indigent persons. Rule 1
prescribes that subject to the other provisions in the Order, any suit may
be instituted by an indigent person. Explanation I defines an indigent
person for the purpose of the Code. A person is indigent, if he is not
possessed of sufficient means, other than the property exempt from
attachment in execution of a decree under Section 60 and also the
subject matter of the suit, to enable him to pay the fee prescribed by law
for the plaint. Where no such fee is prescribed for the plaint, if a person
is not entitled to property worth one thousand rupees other than the
property exempt from attachment in execution of a decree and the
subject matter of the suit is also an indigent person.
18. Explanation II to the above Rule clearly specifies that any
property which is acquired by a person after the presentation of his
application for permission to sue as an indigent person, and before the
decision on the application, shall be taken into account in considering
the question of indigency. Explanation III thereto is not relevant for our
purpose.
19. Rule 1A of Order XXXIII of the Code mandates that every
inquiry into the question, whether or not a person is an indigent person,
shall be made, in the first instance, by the chief ministerial officer of the
Court, unless the Court otherwise directs. The court has the discretion
to adopt the report of such officer as its own finding or, may, itself make
an inquiry into the question of indigency.
20. Rules 2 and 3 of Order XXXIII of the Code speak about the
contents and presentation of the application. In short, these provisions
say that every such application shall contain the particulars required in
regard to the plaints in suits and the application shall be presented to
the court by the applicant in person, unless he is exempted from
appearing in court by any law. Examination of the applicant is dealt with
in Rule 4.
21. In this context, it is relevant to mention that the inquiry into
the question whether a person is indigent or not cannot be reduced to
the level of a matter exclusively between him and the State
Government. In other words, the opposite party, who will be called upon
to answer the plaint also has a right to show that the applicant is not in
forma pauperis. It is a valuable right available to a person against whom
the suit is instituted and he can appear and contest the claim of
indigency in order to avoid a possible frivolous or vexatious litigation. In
genuine cases, pauperism shall not be an obstacle or hindrance in the
way of a litigant pursuing a legal remedy. On the other hand, the rights
of parties, who are likely to be adversely affected by false or frivolous
suits experimentally laid without paying the requisite court fee, should be
respected. These principles have been lucidly enunciated in
Shri.M.L.Sethi v. Shri.R.P.Kapur (AIR 1972 SC 2379).
22. The expression "sufficient means" occurring in Order XXXIII
Rule 1 of the Code is very much significant. The Code consciously does
not use the expression "without any means". Ability or wherewithal of the
applicant to raise money sufficient to pay the requisite court fee is the
point to be enquired into. As observed in some decisions, having
"sufficient means" refers to possession of enough properties from which
money sufficient to pay the requisite court fee could be realized. One
need not be in abject poverty to be qualified as an indigent person
envisioned under Order XXXIII Rule 1 of the Code.
23. Complaint raised in this case is that the court below misread
the grounds for rejection of the application provided in Rule 5 of Order
XXXIII of the Code. The provision reads thus :
" 5. Rejection of application. - The Court shall reject an
application for permission to sue as an indigent
person. -
(a) where it is not framed and presented in the manner
prescribed by rules 2 and 3, or
(b) where the applicant is not an indigent person, or
(c) where he has, within two months next before the
presentation of the application disposed of any
property fraudulently or in order to be able to apply for
permission to sue as an indigent person:
Provided that no application shall be rejected if, even
after the value of the property disposed of by the
applicant is taken into account, the applicant would be
entitled to sue as an indigent person, or
(d) where his allegations do not show a cause of action,
or
(e) where he has entered into any agreement with
reference to the subject matter of the proposed suit
under which any other person has obtained an
interest in such subject matter, or
(f) where the allegations made by the applicant in the
application show that the suit would be barred by any
law for the time being in force, or
(g) where any other person has entered into an
agreement with him to finance the litigation."
24. Rule 6 mandates that a notice shall be given to the opposite
party and the Government Pleader for receiving evidence of the
applicant's indigency when the court finds no reason to reject the
application on any of the grounds stated in Rule 5. Rule 7 lays down the
procedure at hearing and goes on to say that the court shall examine
the witnesses (if any) produced by either party, and may also examine
the applicant or his agent to make a full record of their evidence. It is
amply clear from Rule 7(1A) that the examination of the witnesses shall
be confined to the matters in clauses (b), (c) and (e) of Rule 5. But, at
the same time, the examination of the applicant or his agent may relate
to any of the matters specified in Rule 5. After hearing the arguments,
the court may decide on the question of indigency, either by allowing or
refusing to allow the applicant to sue as an indigent person.
25. Learned counsel strongly argued that the appellant has not
suppressed any vital information from the court touching on the question
of indigency. Well settled is the legal proposition that suppression of a
material fact by a litigant disqualifies such a person from obtaining any
relief. It has been held in S.J.S Business Enterprises (P) Ltd. v. State
of Bihar and Others (2004(7) SCC 166) that the suppressed fact must
be a material one, in the sense that had it not been suppressed, it would
have had an effect on the merits of the case. Further, it must be a
matter, which was material for the consideration of the court, whatever
view the court may have taken on it. Almost the same view was adopted
by another Division Bench of the Supreme Court in Mayar (H.K) Ltd.
And Others v. Owners and Parties (AIR 2006 SC 1828).
26. According to the learned counsel, the appellant has not
suppressed any material fact. In this case, in the C schedule to the
plaint, certain wearing apparels, said to be belonging to the appellant,
are shown. It is the contention of the appellant that except those articles
worth Rs.3,400/-, no other property or cash is available with her to pay
the requisite court fee. This case is stoutly denied by the respondents
contending that the appellant is in possession of other immovable
properties and also derives income from the properties settled in the
names of the respondents. Besides, she has gold ornaments worth Rs.5
Lakhs. Going by the averments in paragraph 15 of the plaint, it can be
seen that the appellant claims to be in possession and enjoyment of A
and B schedule properties. On this ground, it is argued that the
appellant's indigency is a false claim. We find some force in this
argument especially when we consider the ratio in Mathew v. State of
Kerala (1996 (2) KLT 363) pronounced by a Division Bench of this
Court.
27. In Mathew's case (supra), the trial court refused permission
to the appellant to sue as an indigent person on the ground that he had
not set out in full the assets held by him, either in individual capacity or
as a partner of a firm. In view of the failure to disclose the properties, he
was found disentitled to the permission sought for. After taking into
account various pronouncements, the Division Bench found that the
court below was justified in refusing permission to the appellant.
28. We may quote paragraphs 6 and 7 from the judgment in
Mathew 's case (supra) :
" 6. O. 33 R. 5 deals with rejection of an
application for permission to sue as an indigent
person. Clause (a) thereof says that the application
shall be rejected where it is not framed and presented
in the manner prescribed by Rr. 2 and 3. Sub-r. (b)
calls for rejection where the applicant is not an indigent
person. O. 33 R. 2 clearly provides that every
application for permission to sue as an indigent person
shall contain the particulars required in regard to
plaints in suits: a schedule of any movable or
immovable property belonging to the applicant with the
estimated value thereof shall be annexed thereto and it
shall be signed and verified in the manner prescribed
for the signing and verification of pleadings. In other
words, what R. 2 contemplates is a scheduling of any
movable or immovable property (emphasis supplied)
belonging to the applicant with the estimated value
thereof. When an applicant does not disclose an asset
held by him in his application, whatever be the reason,
on the wording of R. 2 of O. 33 of the Code it is clear
that the application is liable to be rejected in terms of
0.33 R. 5(a) of the Code. In Vazhunnavar's case, His
Lordship Justice Raghavan (as then was) made an
exception only in cases where a bonafide omission to
include an asset was made by an applicant. May be
occasionally cases may arise where either due to
inadvertence or for reasons beyond his control, an
applicant might omit to include an item of property in
his application for permission to sue as an indigent
person. If before the final disposal of the application,
the applicant takes steps to include the said item also
in the schedule to the application and satisfies the
Court that the original omission was bonafide, it may
be possible to take the view that at the time the
application is taken up for disposal the same had been
framed in the manner prescribed by R. 2 of O. 33 of
the Code. With respect, we are inclined to think that
the proposition as stated in Kunji Raman's case (1976
KLT 620) cannot be accepted in the broad form in
which it is stated. The postulate that the rejection could
only be under O. 33 R. 5(b) of the Code in a case
where there is a non-disclosure in the application
made by an applicant with respect, cannot be
accepted. When R. 2 of O.33 calls for setting out the
entire assets of an applicant for permission to sue as
an indigent person, there is no jurisdiction for watering
down the said requirement except probably in the
exceptional circumstance of a bonafide omission as
referred to by His Lordship Justice Raghavan (as he
then was) in Vazhunnavar's case. The Supreme Court
has clarified in the decision in M.L. Sethy v. R.P.
Kapoor (AIR 1972 SC 2379) that an immunity from a
litigation unless the requisite court fee is paid by the
plaintiff is a valuable right for the defendant. When the
plaintiff seeks the taking away of that immunity on the
scheme provided by O.33 of the Code, is there any
jurisdiction for whittling down the requirement set out in
O.33 R. 2 of the Code of Civil Procedure? We think
not. Under the scheme of O. 33 of the Code, a plaintiff
is exempted from paying the Court fee that is payable
by any other litigant who comes to court for relief at the
time of institution of the suit on the ground that he is
not in a position to pay the court fee. If a plaintiff seeks
such a special privilege to pursue his litigation, is there
any reason not to insist on his strictly complying with
the requirement of O.33 of the Code and coming to
court with clean hands? According to us, there is no
jurisdiction for removing the immunity available to the
defendant in a suit and to grant a right to the plaintiff to
prosecute the suit without payment of the Court fee
unless the plaintiff comes to court with clean hands,
making a disclosure of all his assets. The word 'any
movable or immovable property' used in O. 33 R. 2
according to us ought to be given its natural meaning
and on the scheme of the Code, it is clear that failure
to comply with any of the requirements of O. 33 R. 2 or
R. 3, should entail the rejection of the permission
sought for by a plaintiff. In fact, Mr. T.K. Joseph, J, in
Abdul Khader Rowther v. Appu (1963 KLT 13) adopted
the view that any deliberate omission to include all the
assets in the schedule should entail the dismissal of
the application. We are therefore satisfied that in so far
as Kunju Ramam's case (1976 KLT 620) postulated
that even in the case of an omission to include an
asset by an applicant and its discovery later, the
rejection of the application could only be under O. 33
R. 5(b) of the Code, cannot be taken as correct. With
respect, we are of the view that the rejection could be
under O.33 R, 5(a) of the Code in such a situation and
a rejection under O.33 R. 5(a) of the Code can be
warded off by an applicant for permission to sue as an
indigent person, only by establishing that it was a
bonafide omission on his part to include the asset and
only after getting the application for permission
amended to accord with the requirement of O. 33 R. 2
of the Code.
7. We would like to advert to another aspect,
at this stage. In K. Vazhunnavar's case(1963 KLT 457)
Raghavan, J. (as he then was) has suggested that it
should appear to the court that the omission was
deliberate and malafide before an application for
permission can be rejected for non-disclosure of all his
assets by the applicant who seeks to sue as an
indigent person, as if the burden to show malafides is
on the defendant opposing the application. We think
with respect, that the boot is on the other leg and it is
for the applicant to prove to the satisfaction of the
Court that the omission on his part was not deliberate
and it was a bonafide one. An application for
permission to sue as an indigent person must be made
with utmost bonafides and on the omission being
discovered at the instance of the State or the
defendant in the suit, it is for the applicant to establish
that his omission to include is bonafide. It is really a
case where he is caught out on an omission. If it is
deliberate, he must take its consequences. It is in that
context that it becomes necessary for him to explain
his omission and to show that it was not deliberate or
that there was no lack of bonafides on his part in
making such an omission. The adoption of a different
approach would encourage dishonesty and in the
applicant taking a chance on the non-discovery of the
omitted asset and on being discovered, taking shelter
under a plea that the omission to include is not shown
to be malafide by the other side. We are therefore of
the view that the statement of the law as contained in
Vazhunnavar's case on the approach to be adopted
also requires to be modified."
29. Learned Senior counsel contended that the situations dealt
with in Mathew's case (supra) squarely apply to this case too and,
therefore, the ratio has to be applied herein. Per contra, learned counsel
for the appellant contended that the view expressed in
P.V.Chandrasekharan v. Thirumala Chit Funds (AIR 1989 Mad 30)
and Navudu Nuka Raju v. Rajani China Appanna (AIR 1977 AP 15),
that failure to make a full and complete disclosure of one's movable and
immovable property assets would disentitle a person to get permission
to sue as an indigent person whatever be the motive for such non-
disclosure or even if the non-disclosed property was not sufficient to pay
court fee, is an extreme proposition. According to him, the facts in
Mathew's case (supra), did not warrant approval of the said proposition.
On the contrary, learned counsel appearing for the respondents
supported the above view in the light of the mandatory prescriptions in
Order XXXIII Rule 2 and Rule 5(a) of the Code. We find an observation
in Mathew's case, at paragraph 6, which is favourable to the line of
arguments of the respondents. We are bound by an earlier
pronouncement by a co-equal Bench.
30. More over, we also support the view that the plea of
indigency should be made with utmost honesty and bona fides since
approval of the same will have an impact on the exchequer as well as
on the opposite party. True, bona fide omission to show the particulars
of any movable or immovable property belonging to the applicant shall
not be a reason to penalise him. But, it is for the applicant to explain the
reason for the omission and it is also for him to show that it was a bona
fide omission. Therefore, we find no reason to defer from the view taken
by the earlier Division Bench in Mathew's case.
31. Another decision cited by the learned counsel for the
appellant is Pathumma v. KSEB (1997(2) KLT 227). In paragraph 3, the
following observations are made :
"3. If the requirement of law is that, a person has to
sell whatever little he possess in this world or beg,
borrow or steal to raise money for payment of court
fee, that will be too harsh an approach to the problem
resulting in manifest injustice cutting at the very root of
the basic values and ideals of administration of justice
in a welfare-State. While stating so we are only
reminding ourselves of the constitutional obligations of
the State to administer justice within its realm and the
Directive Principles of State Policy in Art. 39A which
enjoins the State to ensure that opportunities of
securing justice are not denied to any citizen by
reason of economic or other disabilities. The laws'
delays and expenses of litigation are the notorious
twin spokes on the wheels of legal system and
administration of justice. If the social and economic
change is to be achieved through peaceful means,
then their realisation and effectuation which are
directly linked to the availability and efficacy of
expeditious and cheap legal remedies must receive
top priority on the constitutional agenda."
With respect, we find that the facts in this case do not justify the
application of the legal principles enunciated in the above decision.
32. Yet another decision relied on by the appellant is Mathai M
Paikeday v. C.K.Antony (AIR 2011 SC 3221), where the expression
'sufficient means' occurring in Order XXXIII Rule 1 of the Code is
interpreted to mean the ability or capacity of a person, in the ordinary
course, to raise money by available lawful means to pay court fee. In the
facts of the case on hand, there are materials pointed out by the
respondents to show that the appellant has sources of income sufficient
to pay court fee. But then, the appellant had not attempted any rebuttal.
Had the appellant made a true and complete disclosure of the entire
assets, both movable and immovable, before the court of first instance,
it would have answered the question whether she has sufficient means
to pay the requisite court fee or not. In fact, withholding material
information has affected the adjudicatory process. In the facts of the
case, it cannot be said to be a bona fide omission.
33. Arguments raised by the learned counsel that the appellant,
being an old lady, could not have collected usufructs as claimed by the
respondents cannot be accepted. Such a case too was not attempted to
be established. In this context, the respondents' case that their own
brother is the mastermind of the litigation assumes relevance. Absence
of any evidence on the appellant's side is a blemish in her case.
34. Even though reliance is placed on Rajamma Joseph v.
Binu Prasad and Others ( 2010 KHC 99), we find no new proposition
laid down therein.
35. Learned counsel for the respondents placed reliance on two
Division Bench decisions in Mini James v. T.I.Goerge and Others
(2018 (5) KHC 744) and Palakkil Puthiyamaliyekkal Abdul Razak v.
P.K.Saleem ( 2018 (5) KHC 336), where the provisions in Order XXXIII
of the Code were interpreted to hold that suppression of real facts would
entail in disallowing the prayer of the applicant to sue as an indigent
person.
In the light of the above mentioned legal propositions, we
find no legal infirmity in the finding of the court below, especially when
there are reasons to find from her own pleadings that the appellant has
not disclosed the true facts to establish her indigency. Moreover, the
appellant failed to personally testify or adduce any evidence before the
court to establish that omission to include all her properties in the
application was a bona fide mistake.
In the result, we find no reason to interfere in the impugned order.
Hence, the appeal is dismissed. No costs.
All pending interlocutory applications will stand dismissed.
A.HARIPRASAD,
JUDGE
ZIYAD RAHMAN A.A,
JUDGE
amk
