@JUDGMENTTAG-ORDER
K.K. Sasidharan, J.@mdashThis civil revision is directed against the order dated 4-7-2008 in POP No. 28/2004 on the file of the learned I Additional District Judge, Erode whereby and whereunder, the application preferred by the first respondent to file a suit in forma pauperis was allowed.
The facts in outline:
2. The first respondent has filed a suit originally before the Subordinate Court, Erode against the revision petitioners praying for a Judgment and Decree directing them to pay a sum of Rs. 1,37,18,205/- with future interest and cost.
3. The first respondent has also filed an application in POP No. 28/2004 invoking Order 33, Rule 1, CPC to permit him to file the suit as indigent.
4. In the affidavit filed in support of the application in POP No. 28/2004, it was the case of the first Respondent that he was forced to close down his business on account of the fraudulent act committed by the revision petitioners. He was not possessing any stock and no amount was due to him from anybody else. According to him, except the property which was described in the schedule to the petition, he has no other property in his possession. The immovable property shown in the schedule valued about Rs. 14 lakhs was subjected to hypothecation in favour of Karur Vysya Bank and he was liable to pay more than Rs. 15 lakhs to the said Bank. Therefore, he was not in a position to pay the Court fee which made him to file an application to sue in forma pauperis.
5. The application was resisted by the revision petitioners by filing counter. According to them, the petitioner was in possession of sufficient movable and immovable properties worth more than Rs. 4 crores. In the additional counter affidavit filed subsequently by way of amendment, it was further contended that the petitioner was having a property at Veerappan Chatiram Erode, very near to bus stand, cost of which would be about Rs. 2 crores.
The Judgment of the Judge:
6. The learned Trial Judge was of the view that the first respondent was not having sufficient means to pay Court Fee. According to the learned Judge, the amount which is stated to be in the possession of the first respondent was not sufficient to pay the Court Fee. Accordingly, the application was allowed. It is the said Order which is impugned in the Civil Revision Petition.
Submissions:
7. The learned Senior Counsel appearing on behalf of the revision petitioner has taken me through the pleadings to substantiate his contention that the material averments in the pleadings as well as evidence tendered by the first respondent was overlooked by the learned Trial Judge while deciding the application.
8. According to the learned Senior Counsel for the petitioner, even as per the evidence tendered by the first Respondent, he was having a sum of Rs. 9.62,792,69 with him and as such, the learned Trial Judge erred in observing that the said amount was not sufficient to pay the Court Fee. The learned Senior Counsel further contended that the entire property which belonged to the first Respondent was not shown in the schedule and as such, he was not entitled to the benefits of an equitable provision like Order 33, Rule 1 CPC. The learned Senior Counsel also contended that during his evidence as PW-1, the first Respondent has admitted about certain items of properties which were not disclosed in the schedule and as such, the first Respondent was guilty of suppression of material facts which would disentitle him from getting an order of exemption from payment of Court Fee. The learned Senior Counsel has also placed reliance on the Judgment of this Court in support of his contention that the money could be raised even by selling property and to substantiate his contention that failure to disclose the available property in the application would result in dismissal of the application.
9. The learned Senior Counsel appearing on behalf of the respondent contended that there was no act of suppression by the first Respondent so as to disentitle him to invoke the provisions of Order 33, Rule 1 CPC. According to the learned Senior Counsel, the property referred to during the examination of PW-1 was not the property owned by him and as such, failure to indicate the said property in the schedule was immaterial. The learned Senior Counsel also contended that the Order impugned in the revision is purely a discretionary Order which is not liable to be set aside at the instance of defendant as the issue of payment of Court fee is between the plaintiff and the Court.
10. The prayer in the suit was for recovery of a sum of Rs. 1,37,18,205/- and as such, the first respondent has to pay a sum of Rs. 10,28,866.25 as Court Fee,
The relevant law of in forma pauperis:
11. Order 33, Rule 1 provides for institution of suit in forma pauperis. As per Order 33, Rule 1, a person is an indigent if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, if he 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.
12. The provision as contained in Order 33, Rule 1 enables a party who is not possessed of sufficient means to pay Court Fee, to institute the suit without payment of Court Fee. In Order to obtain an Order of exemption, party has to disclose in the schedule, of all the movable and immovable properties belonging to him. Such schedule shall be signed and verified in the manner prescribed for signing and verification of pleadings. The statute also made provision for considering the application including the inquiry with respect to indigent status of the plaintiff.
13. The benefit given to a litigant to dispense with payment of Court Fee was not a permanent measure. In case such indigent plaintiff succeeds in the suit. Court shall calculate the amount of Court Fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person and such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit. Order 33, Rule 11, CPC provides for the contingency in the event of the indigent person fails in the suit.
14. Proceedings initiated by a plaintiff under Order 33, Rule 1, CPC would be decided on the basis of pleadings. Order 33, Rule 2 provides for disclosing the entire movable and immovable properties of the plaintiff along with its estimated value. The plaintiff is also to sign and verify the pleadings. The intention of disclosing the entire property of the plaintiff in a suit was to decide the matter on the basis of such relevant materials. The Court was also expected to issue notice to the Collector, as ultimately, State is the sufferer. Therefore, the Collector also plays a predominant role in the matter of deciding an application for exemption from payment of Court Fee.
15. The statutory requirement of disclosing the entire property of the applicant in the schedule is not an empty formality. The applicant was expected to disclose the entire details with respect to his property so as to enable the Court to take a decision in the matter. In case the Court was apprised of the fact that the entire property of the applicant was not disclosed in the petition filed under Order 33, Rule 1, such applications would be liable for summary dismissal.
16. There is a prescribed procedure for conducting enquiry to decide as to whether the applicant was an indigent. Rule 6 of Order 33, CPC provides that in case the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day for receiving such evidence with notice to the opposite party as well as to the Government in support of his condition of indigency. Therefore, the Government have also got a definite role to play in the matter of declaration of an applicant as indigent. However, very often, the Revenue takes little interest in the matter and as a result. Court would be denied of the benefit of the Collector''s report for the purpose of deciding the application filed for exemption from payment of Court fee.
Legal principles:
17. The learned Senior Counsel placed reliance on the judgment of this Court in
18. In Thirumalai Chit Fund''s case, a learned Judge of this Court, following an earlier decision, held that the failure to disclose the property in the schedule would entitle dismissal of the application filed under Order 33, Rule 1 of CPC.
19. In Muthulakshmi Ammal case cited supra, a Division Bench of this Court considered the nature of a proceeding under Order 33, Rule 2 and observed thus:
Under Order 33, Rule 2 read with Order 33, Rule 5(a) and Order 44, Rule 2, it is the bounden duty of the petitioner applying for leave to sue or appeal as a pauper to make a full and accurate verified statement of his or her properties. The utmost good faith is required of the plaintiff in the matter of the disclosure of his or her assets and any intentional departure from good faith, whatever the motive may be, must result in the dismissal of the petition. Accordingly where the petitioner obtained leave to appeal in forma pauperis by practising fraud on the Court by not disclosing all his assets the leave must be cancelled.
20. The learned Senior Counsel for the respondent placed reliance on the judgment of Himanchal Pradesh High Court in
21. The entire issue in this case has arisen only on account of the absence of the Collector''s report with respect to the indigency of the first respondent. The learned Counsel appearing for the second respondent submitted that the District Collector is prepared to file report with regard to the status claimed by the first respondent within the meaning of Order 33, Rule 1, CPC.
22. The suit is of the year 2002 and even now, the suit has not been proceeded with. The learned trial Judge has not considered the entire factual matrix to come to a conclusion about the claim made by the first respondent to exempt him from payment of court-fee. The learned trial Judge has also recorded a factual finding that the first respondent was in a position to pay a sum of Rs. 9,62,792.69. According to the learned Trial Judge, the said amount was not sufficient to pay the court-fee of Rs. 10,28,866.25. The first respondent has also indicated about the property in his possession. During his evidence, he has also deposed about certain other properties. Those details were not considered by the learned trial Judge. There was also no attempt made by the learned trial Judge to consider as to whether the non-disclosure of property mentioned in the evidence of P.W. 1 in the petition schedule had the effect of dismissal of the very application in view of the binding decision of this Court.
23. Therefore, oh a careful consideration of the entire matter, I am of the view that the issue needs to be looked into by the learned trial Judge afresh. In order to consider the claim of indigent status as pleaded by the first respondent, report of the Collector is absolutely necessary. Therefore, the second respondent has to file a report about the financial condition of the first respondent before the trial Court.
Disposition:
24. In the result, the order dated 4-7-2008 is set aside and the matter is remanded to the learned trial Judge for fresh consideration. The learned trial Judge is directed to give four weeks time to the second respondent/District Collector. Erode to submit a report about the financial status of the petitioner in the light of his contention that he was not having sufficient means to pay the court-fee and the District Collector has to submit the report within the outer time limit fixed by the Court. The learned trial Judge has also to consider the entire issue on merits and in the light of the report submitted by the District Collector. It is needless to point out that in case the first respondent is desirous of amending the petition schedule, so as to incorporate any of the property left out by him in the earlier application, such opportunity should also be given by the learned trial Judge.
25. The civil revision petition is disposed of with the above direction. No costs. Consequently, M.P. No. 1/2008 is closed.
