Rajan vs Jolly
2022 Latest Caselaw 9443 Ker

           ANIL K. NARENDRAN & P.G.AJITHKUMAR, JJ.
           -----------------------------------------------------
                          R.F.A.No.49 of 2022
           -----------------------------------------------------
               Dated this the 25th day of August, 2022

                                ORDER

Ajithkumar, J.

C.M.C.P.No.10 of 2022

The appellant filed this petition under Order XXXIII, Rule 1

of the Code of Civil Procedure, 1908, seeking leave to file the

appeal as an indigent person. The appeal is filed against the

judgment and decree is O.S.No.17 of 2018 on the file of the

Principal Sub Court, Kottayam. The suit was filed by the

respondent seeking a decree of declaration, injunction and

partition. The suit was decreed as per the judgment dated

30.10.2021. The sole defendant in the suit is the appellant, who

is aggrieved by the said decree. To appeal, he has pay court fees

of Rs.4,75,250/-. The petitioner, contending that he is not in a

position to remit such an amount towards court fees, has filed

this petition.

2. The petitioner contends that only property he owns is

the property involved in the appeal. He has wife and three

R.F.A.(Indigent) No.49 of 2022

daughters, who are all jobless. He has no income whatsoever.

In the circumstances, he is unable to pay the court fees.

3. The respondent has filed a counter affidavit. He

would contend that the petitioner has suppressed the facts

thereby misled the court. In the suit, item Nos.1 and 2

properties alone are involved; whereas it is stated that all the

three items are subject matter of the suit. The third item of

the property, which has an area of 63.48 Ares, is worth more

than Rs.18 lakhs in the year 2013. There is sufficient income

for the petitioner to remit court fees. Thus the respondent

maintains that the petition is liable only to be dismissed.

4. A report from the District Collector, Kottayam, was

called for. The learned Government Pleader as per memo

dated 13.07.2022 placed on record the report of the District

Collector. In the report, it is stated that the petitioner owns

three items of property and that he does not have any

income. It is, however, reported that his daughter has an

yearly income of Rs.2,40,000/-. Taking into account the fact

that the petitioner is a cancer patient, the Collector has

reported that he is not capable of remitting the court fees.

R.F.A.(Indigent) No.49 of 2022

5. Heard the learned counsel appearing for the

petitioner, the learned counsel appearing for the respondent

and also the learned Government Pleader.

6. In Jagadamma v. Sheela and another [2021

(3) KLT 347] a Division Bench of this Court explained what

shall be the criteria for deciding the question of sufficient

means,-

"22. The expression "sufficient means" occurring in Order XXXIII R.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."

7. In Paulose @ Paulo v. Elias K.Varghese and

another [2012 (1) KLT 754], this Court considered who

can be said to be a person without sufficient means in the

context of Order XXXIII, Rule 1 of the Code. It was held,-

R.F.A.(Indigent) No.49 of 2022

"It refers not to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain whether he is capable of raising the court fee in normal circumstances. The Code uses the expression 'sufficient means', i.e. "means" sufficient to pay court fee after meeting the basic requirements of life. Total destitution is no prerequisite to seek justice. If he does not have sufficient means to pay court fee, justice shall not be denied to him. The benefit is conferred on persons without 'sufficient means' and not without any means at all. Pauperism is not a pre-requisite for leave to sue as an indigent person. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property which the court has to look into. Possession of 'sufficient means' refers to possession of sufficient realisable property which will enable the plaintiff to pay the court fee. Possession of hard cash sufficient enough to pay the court fee is not a prerequisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay the court fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. Even though sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what

R.F.A.(Indigent) No.49 of 2022

that capacity is. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of 'sufficient means' should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that is yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court fee cannot be taken into account in calculating sufficient means."

8. In the light of the principles of law laid down in the

aforesaid decisions, it cannot be said that a person in abject

poverty alone can be granted permission to sue as an indigent

person. What is to be shown before the court is that he is a

person not able to raise enough funds for making payment of

the court fees in the present circumstances.

9. The learned counsel appearing for the respondent

would contend that the property covered by Annexure R1

belongs to the petitioner and it is not a subject matter of the

suit. As per the provisions of Order XXXIII, Rule 1 of the

R.F.A.(Indigent) No.49 of 2022

Code, only the properties which are the subject matter of the

suit alone are excluded, and therefore, the petitioner can deal

with item No.3 property which is worth Rs.18 lakhs as per the

valuation in 2013 itself, cannot be said to be an indigent

person. It is further contended that the petitioner falsely

stated that all the properties were subject matter of the suit.

10. What is stated in the affidavit by the petitioner is

that he has only three items of property mentioned in the

plaint. It is true that the relief was claimed only in respect of

two items of property alone, but all the three items were

mentioned in the plaint. In that view of the matter, the third

item cannot come within the exclusion clause in the

Explanation to Rule 1 Order XXXIII of the Code. However, it

cannot be said that there was any suppression of facts by the

petitioner.

11. Even though it is contended that the petitioner has

enough income from the property in his possession, there is

nothing on record to substantiate the same. Going by the

report of the District Collector, the petitioner does not have

enough source of income to make payment of the court fees

R.F.A.(Indigent) No.49 of 2022

due on the appeal. There is nothing on record to show that

the report is incorrect. It is possible for the petitioner to sell

the third item of the property and raise funds in order to

make payment of the court fees. But that cannot be termed

as means immediately available to the petitioner. If there is

no material to show that the petitioner is presently deriving

enough income or has in possession of assets that can easily

be liquidated into money, it is only justice and proper to allow

the petitioner to appeal as an indigent.

In the circumstances, we allow this C.M.C.P.

R.F.A.(Indigent) No.49 of 2022

List for admission on 16.09.2022.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr