Punjab-Haryana High Court
Avtar Singh Through His Lrs vs Lakha Singh And Another on 30 September, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:129454
CR-4722-2024 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
***
CR-4722-2024
Date of decision : 30.09.2024
Avtar Singh (since deceased) through his LRs
... Petitioner
Versus
Lakha Singh and another
... Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr.Ravish Bansal, Advocate
for the petitioner.
VIKAS BAHL, J.(ORAL)
1. This is a Civil Revision Petition filed under Article 227 of the
Constitution of India for setting aside the order dated 15.04.2024 (Annexure
P-3) passed by the Additional District Judge, Faridkot whereby an
application dated 16.12.2019 (Annexure P-2) filed by the petitioner under
Order 44 Rule 1 CPC for permission to file appeal as an indigent person has
been dismissed.
2. Brief facts of the present case are that respondent no.1 had filed
a suit against the petitioner (now represented through his legal
representatives) for specific performance of agreement to sell dated
20.04.2015 and for permanent injunction with respect to land measuring 16
kanals 0 marlas situated within the revenue estate of Village Sandhwan,
Tehsil and District Faridkot. The said suit was instituted in the year 2016
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and was decreed on 01.10.2019. A copy of the decree sheet has been
annexed with the present petition as Annexure P-1. A perusal of the decree
sheet would show that out of total sale consideration of Rs.31,40,000/-, an
amount of Rs.22,70,000/- was already received by the petitioner (defendant)
as earnest money at the time of execution of the agreement to sell and only
the balance amount was to be paid and on receipt of the said balance
amount, the sale deed was to be executed and the possession was to be
delivered.
3. Against the said judgment and decree, an appeal was filed
along with an application under Order 44 Rule 1 CPC for declaring the
appellant as an indigent person. In the said application, it was stated that
except the suit property, the petitioner did not have any other property and
the fact that in addition to 16 kanals 0 marlas of land, which was the suit
property, the petitioner was also the owner of 10 kanals of land, was not
mentioned in the said application and even the value of the land measuring
10 kanals was not mentioned and thus, there was active concealment by the
petitioner. By the time the said application was decided, the defendant-
Avtar Singh had died and the said application was pursued by the LRs of
Avtar Singh, who had inherited the above said land. The Ist Appellate Court
had directed the LRs of Avtar Singh, i.e., Krishan Singh as well as Major
Singh, to file affidavits alongwith the list of property and the bank statement
but the said documents although produced before the Ist Appellate Court,
have not been annexed along with the present petition. The Ist Appellate
Court had observed that as per jamabandi for the year 2016-17 Ex. R1,
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which is already on record, it was apparent that the land of the said Avtar
Singh was inherited by Major Singh and Krishan Singh vide mutation
no.7607 and the entire land owned by Avtar Singh had been transferred to
the said Major Singh and Krishan Singh and the said land was shown to be
'Nehri', i.e. the source of irrigation was a canal and small portions of the
land were mentioned as 'Gair Mumkin Abadi'. It was further observed that
the said Avtar Singh in view of the ownership of the land as well as the sons
of Avtar Singh in view of the fact that they had inherited the said land,
could not be stated to not having the capacity to pay the requisite court fee
and in fact in the State of Punjab, the said land was found sufficient to come
to a conclusion that the said Avtar Singh and further his legal
representatives had the capacity to pay the requisite court fee and the
application accordingly was dismissed and the case was adjourned to
13.05.2024 for affixing the requisite court fee. The zimni order dated
13.05.2024 and also the zimni orders passed on subsequent dates have not
been annexed along with the present petition.
4. Learned counsel for the petitioner has submitted that a perusal
of the jamabandi for the year 2016-17 (Annexure P-4) would show that
Avtar Singh was the owner of ½ share of land measuring 52 kanals 19
marlas and the suit land measuring 16 kanals 0 marlas is also out of the said
property, inasmuch as, a perusal of the decree would show that khasra
no.494, 496, 497 and 498 were also a part of the suit land and thus, non-
giving of details of the balance land measuring 10 kanals approximately was
not on account of any malafide reason. It is submitted that in fact the said
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Avtar Singh had even mortgaged the said 10 kanals of land for an amount of
Rs.5 lacs and rapat no.491 was entered into with respect to the same and
thus, neither Avtar Singh nor his LRs have sufficient means to pursue the
present case and thus, they be permitted to pursue the present case as
indigent persons. Learned counsel for the petitioner has relied upon the
provisions of Order 44 Rule 1 CPC read with Order 33 Rule 1 CPC in
support of his arguments.
5. This Court has heard the learned counsel for the petitioner and
has perused the paper book and is of the opinion that the present petition
being meritless, deserves to be dismissed and the impugned order dated
15.04.2024 deserves to be upheld.
6. A perusal of the provisions of Order XXXIII, moreso, a perusal
of Rule 2 would show that in every application for permission to sue as an
indigent person, the applicant is required to mention a schedule of any
movable or immovable property belonging to the applicant, with the
estimated value thereof, which is also required to be annexed and the same
is to be signed and verified in the manner prescribed for the signing and
verification of pleadings. Rule 4 provides that the applicant can be
examined. Rule 5 provides for rejection of an application in a situation
where the application is not framed and presented in the manner prescribed
by rules 2 and 3 and on other various grounds. The relevant portions of Rule
2 and 5 are reproduced hereinbelow:-
"ORDER XXXIII
[SUITS BY INDIGENT PERSONS]
xxx xxx xxx
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2. Contents of application.--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.
xxx xxx xxx
5. Rejection of application.--The Court shall reject an
application for permission to use as [an indigent person]--
(a) where it is not framed and presented in the manner
prescribed by rules 2 and 3, or
xxx xxx xxx"
7. The Order XLIV Rule 1 provides that any person who is
entitled to prefer an appeal but is unable to pay the court fee for the
memorandum of appeal, may present an application accompanied by a
memorandum of appeal and the same may be allowed subject to the
presentation of such application being in accordance with the provisions
relating to suits by indigent person, so far as those provisions are applicable.
Thus, by virtue of Order XLIV Rule 1 the provisions of Order XXXIII CPC
are applicable in the case of appeal by indigent person.
8. In the present case, it could not be disputed before this Court
that in addition to the suit property of 16 kanals 0 marlas, the petitioner and
thereafter his legal representatives were the owners of 10 kanals of land
over and above the suit land. A perusal of the application dated 16.12.2019
(Annexure P-2) would show that neither details of the said additional land
measuring 10 kanals have been given in the said application nor the
estimated value of the same has been mentioned. Thus, there was active
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concealment. A perusal of the said application would further show that an
affidavit in support of the said application was also attached but the said
affidavit has not been annexed along with the present petition. The Ist
Appellate Court after the death of Avtar Singh had directed Krishan Singh
and Major Singh, sons of Avtar Singh, who were pursuing the application,
to file their affidavits along with the list of property and the bank statement,
however, even the said documents have not been annexed with the present
petition although the same were filed before the Ist Appellate Court.
9. It is apparent that the fact that the petitioner and subsequently
his LRs were owners of the additional land in addition to 16 kanals of land,
which was the suit property, was found by the Ist Appellate Court on the
basis of jamabandi for the year 2016-17. It was further found by the Ist
Appellate Court that as per the jamabandi, the said land was 'Nehri' and
thus, the application filed by the petitioner was not bonafide and was not in
accordance with the provisions of law and deserves to be rejected on the
said ground alone. In addition to the above, it has been rightly considered
by the Ist Appellate Court that in the State of Punjab the said land holding is
sufficient to hold that the petitioner had the capacity to pay the requisite
court fee. Moreover, once the petitioner has chosen not to even give the
details of property, which were apparent from the jamabandi itself, then, the
bonafide of the petitioner is questionable, inasmuch as, there is every
possibility that the petitioner and his LRs are owners of other properties
also.
10. Even the plea raised by the learned counsel for the petitioner to
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the effect that the khasra numbers comprised in the suit property are all the
same as that in the jamabandi for the year 2016-17 is partly incorrect,
inasmuch as apart from the fact that the suit property is only 16 kanals 0
marlas and the share of the said Avtar Singh-petitioner and thereafter his
LRs is 26 kanals 14.5 marlas, there are two khasra numbers, i.e., khasra
nos.782 and 1030 which are not even part of the suit property. Even the said
two khasra numbers have not been disclosed in the application. Moreover,
the Ist Appellate Court has found that some portions of the property are in
'Gair Mumkin Abadi' and are thus more valuable. Even on merits, once the
petitioner and his LRs are found to be the owners of more than 10 kanals of
fertile land, which includes land in 'Abadi', then, it cannot be said that the
petitioner or his legal representatives are indigent persons, moreso, in the
absence of affidavits, which were produced by the legal representatives of
the petitioner before the Ist Appellate Court.
11. Even the argument with respect to mortgaging of land
measuring 10 kanals cannot be considered at this stage as neither any such
averment was made in the application nor any argument on the said aspect
had been raised before the Ist Appellate Court and the Ist Appellate Court
was required to decide the application only on the basis of application,
affidavits, list of property and the bank statement submitted by the
petitioner/ his LRs. The conduct of the petitioner disentitles him from any
relief from this Court and the impugned order being legal, deserves to be
upheld.
12. Keeping in view the above said facts and circumstances, the
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impugned order dated 15.04.2024 is legal and deserves to be upheld and the
present petition being meritless, deserves to be dismissed and is accordingly
dismissed.
(VIKAS BAHL)
JUDGE
September 30, 2024.
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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