Hon'ble Dr. Satish Chandra,J.
Appellant appeared in person.
This is an appeal under Order 43 Rule 1 of the Code of Civil Procedure (for short "C.P.C.") against the impugned order dated 30.05.2011, passed by Civil Judge (Senior Division), Sitapur whereby application under Order 33 Rule 2 of C.P.C. moved by the appellant in a pending suit has been rejected.
While assailing the impugned order, the appellant, in person, submits that the Civil Judge (Senior Division) had rejected the application on unfounded ground. It could not have been rejected under Order 33 Rule 2 C.P.C.
It shall be appropriate to give brief facts, pleaded before the trial court as borne out from the record.
The plaintiff-appellant claims to have established an industry in the name of M/s. Laxmi Rubber and Chemical Industries, Sitapur and registered with the Sales Tax Department controlled by the defendant No. 1 i.e. State of U.P. According to the appellant, registration was done from 06.02.1986 having registration certificate No. S.T.0053971. However, the appellant could not do the business due to alleged high handedness on the part of the Sales Tax Department. The different applications submitted by the appellant claiming exemption under Section 4A of the Sales Tax Act could not fetch favour from the Sales Tax Department. It has been stated that on account of inaction on the part of the Sales Tax Department, the appellant suffered loss of more than Rs. 69 lacs within a period of 23 years. The submission of the appellant is that the machinery of the State Government dealing with the sales tax and other related matters is highly corrupt hence they have not discharged their statutory obligation to grant exemption under Section 4A of the Sales Tax Act. It has been pleaded that due to corruption at the level of the defendant no.1 i.e., State of U.P., the appellant could not run the business and accordingly failed to serve their children and parents. In sum and substance, the argument advanced by the appellant is that because of the rampart corruption in the state machinery, the appellant could not run the business and has suffered loss of social status, mental pain and agony.
The appellant further states that against the order passed by the Sales Tax Department, he filed a Writ Petition No.3055 (M/B) of 1989, which was dismissed by this Court on 14.08.1997. According to the pleadings on record as contained in paras-12, 13 and 14 of the plaint, the dismissal of the writ petition, filed by the appellant, in this Court is incident of arbitrary exercise of power. Review petition filed against the said order too was dismissed by the High court. It has further been stated that another writ petition, bearing No.2255 (M/B) of 1994 was filed in this Court, which was also dismissed by the order dated 04.08.1994, against which a Review Petition No.109 (w) of 1994 was preferred, which is allegedly pending.
The appellant has used derogatory words in the plaint raising allegation against the functioning of High Court and also stated that because of corruption, the writ petition was dismissed.
In Para-14 of the plaint, it has been stated that the appellant has suffered estimated loss of Rs. 2537 lacs. The appellant further pleaded in the plaint that he approached the Hon'ble Supreme Court where his prayer for contempt was rejected. He submits that against the order passed by this Court, he approached before the Hon'ble Supreme Court levelling serious allegation against the authorities concerned.
A perusal of the record shows that one Pankaj Kalra,Advocate appeared before the Hon'ble Supreme Court on behalf of the appellant Raj Kishore Vaish and Hon'ble Supreme Court while passing an order on 27.03.1995 in Contempt Petition No. 1200 of 1995, observed that the petitioner was not properly advised. Sri Pankaj Kalra had assured the Hon'ble Supreme Court to tender proper advice and record further shows that latter on, the matter was dismissed by the Hon'ble Supreme court to approach appropriate forum.
It appears that thereafter the appellant filed a suit for damages along with an application under Order 33, Rule 2 C.P.C. A perusal of the pleadings of the suit clearly shows that serious allegations were raised against the system right from the Government to higher judiciary. However, total compensation claimed by the appellant in terms of Para 24 in the suit seems to be Rs. 11042 lacs with interest @ 15%.
Application moved under Order 33 Rule 2 of the C.P.C. has been rejected by the trial court. The trial Court observed that the application moved by the plaintiff-appellant is not in accordance with Order 32 Rule 2 C.P.C. and further the trial court held that according to the pleadings on record, no cause of action has been shown by the plaintiff while preferring the suit.
Order 33 Rule 1 provides that a suit may be instituted by the 'indigent person'. 'Indigent' has been defined under Explanation I. For convenience, Order 33 Rule 1 is reproduced as under:-
"Order 33 Rule 1 Suit may be instituted in forma pauperis.-Subject to the following provisions, any suit may be instituted by an [indigent person].
Explanation I. A person is an indigent person-
(a) 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
(b) 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.
Explanation II.-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 of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.
Explanation III.-Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity."
The definition shows that a person shall be indigent who does not possess 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; while 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.
Order 33 Rule 2 C.P.C. is reproduced as under :-
"Order 33 Rule 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.
The above provision shows that any application for permission to sue as an indigent person shall contain the particulars required in regard to plaint in suits; a schedule of 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.
Order 33 Rule 1A empowers the Court to hold an enquiry. It appears that since the plaintiff-appellant had not filed a schedule of movable or immovable property belonging to him, with the estimated value thereof, the trial court opined that application is not in required format, hence not maintainable. The finding recorded by the trial court does not seem to suffer from any illegality and impropriety.
The trial court further observed that no cause of action is made out for issuance of notice to the defendants. The finding recorded by the trial court again seems to be correct keeping in view of the fact that no suit or petition lies against the President of India for any action of the State or Central Government. The suit may be filed against the authority concerned. The suit against the President of India or Governor of the State is not maintainable.
Apart from above, the appellant, who appeared in person, has raised serious allegations against the alleged corruption not only against the Government but also against the highest Court of this country. Dismissal of the petition by this Court or by the Hon'ble Supreme Court does not give liberty to the appellant to raise frivolous allegation. In case his counsel has not properly advised or not argued the case in proper manner or not assisted the Court properly, remedy shall be available to the appellant to approach the State Bar Council against the conduct of the counsel but this does not make out a case of levelling frivolous charge against the higher judiciary where the matter is decided or adjudicated on merit.
The appellant may have suffered because of alleged corruption in the State of U.P. or due to non-exemption under Section 4A of the Sales Tax Act but that is different aspect of the matter and for that the appellant earlier approached this Court as well as Hon'ble Supreme Court but he failed to get any relief. After failing from the highest Court of the land, no allegation should have been raised by the appellant for damages on account of dismissal of writ petition by this Court or special leave petition by the Hon'ble Supreme Court. The allegation and averments made in the present appeal or in the plaint prima facie makes out a case of "criminal contempt" as it amounts to interference in the administration of justice. The trial court has rightly rejected the application holding that no cause of action arose to interfere in the suit in question. The serious allegation raised by the appellant-plaintiff against the highest court of land is enough for dismissal of the present appeal.
Law is very well settled that no suit for damages can be filed against the High Court or Hon'ble Supreme Court or the President of India who discharges its obligation in accordance to law to hold a citizen's right under the Constitution of India and statutory provisions. Judgment and order may be correct or incorrect, but it does not permit to claim damages from the count. Mere permitting the appellant to approach the proper forum while declining to interfere with the matter does not mean that whatever the appellant wants, he may plead i.e. frivolous allegation while filing the suit.
In view of above, it is a fit case to proceed against the appellant for the criminal contempt which, prima-facie, seems to be made out under Section 2(C) of the Contempt of Courts Act, but keeping in view the plight with which the appellant suffered with regard to tax exemption to run the industry at the behest of state machinery, we merely warn the appellant not to raise such frivolous and serious allegation against the higher judiciary.
In view of above, the appeal is dismissed. Record of the trial court be sent back to the court concerned forthwith.
No cost.
Order Date :- 22.9.2011 Rakesh/-