The petitioner/ plaintiff in O.P.No.4 of 2004 on the file of District Court, Ootacamund, whose prayer for leave to sue as an indigent person since has been refused, has directed this Civil Miscellaneous Appeal.
2.In the suit, she sought for delivery of possession of suit property from the defendant/respondent. The Court fee due thereon is Rs.75,000/-. She sought for leave of the Court to sue as an indigent person, now, without paying the Court fee. The District Court refused her leave on two grounds. Firstly, she has not proved that she has no means to pay the Court fee. Secondly, she was convicted in a cheating case.
3.According to the learned counsel for the appellant, stamping the appellant a criminal, the leave sought for cannot be refused. Actually, she had only life estate in a property. In 1997 along with her son she signed in the conveyance deed. Now, she has no property, no money to pay the huge Court fee.
4.The learned counsel for the respondent would submit that in her affidavit except the word that she is an indigent person, nothing has been stated. Ex.B1 shows that she had sold a property. So she has money but has no intention to pay the Court fee. In the circumstances, the Trial Court has rightly refused her leave.
5.Order 33 Rule 1 C.P.C. deals with giving permission/leave to sue as an indigent person. It has been popularly called a "pauper suit" and the person seeking the leave has been called "a pauper". Since the word "pauper" is an indignant word quite demeaning in nature, in 1976, by way of an amendment, instead of "pauper" the word "indigent person" has been introduced in Order 33 Rule 1 Civil Procedure Code.
6.Order 33, Rule 1 C.P.C. runs as under:
"1.Suits may be instituted by indigent person: 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 (othr 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."
7.Order 44 of the Code of Civil Procedure provides for instituting an appeal as an indigent person.
8.The concept of indigent person has been discussed in Corpus Juris Secundum (20 CJS Costs 93) as follows:
"93.What constitutes indigency.- The right to sue in forma pauperis is restricted to indigent persons. A person may proceed as poor person only after a court is satisfied that he or she is unable to prosecute the suit and pay the costs and expenses. A person is indigent if the payment of fees would deprive one of basic living expenses, or if the person is in a state of impoverishment that substantially and effectively impairs or prevents the pursuit of a court remedy. However, a person need not be destitute. Factors considered when determining if a litigant is indigent are similar to those considered in criminal cases, and include the party's employment status and income, including income from government sources such as social security and unemployment benefits, the ownership of unemcumbered assets, including real or personal property and money on deposit, the party's total indebtedness, and any financial assistance received from family or close friends. Not only personal liquid assets, but also alternative sources of money should be considered."
9.The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court fee, to seek justice. Order 33 and Order 44 of the Code of Civil Procedure exempts such indigent person from paying requisite court fee at the first instance and allows him to institute suit or prosecute appeal.
10.In A.A.Haja Muniuddin v. Indian Railways [1992 (4) SCC 736] the Hon'ble Supreme Court observed as under:
"5.....Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee."
11.In Union Bank of India v. Khader International Construction [21 (5) SCC 22], the Hon'ble Supreme Court held as under:
"20.Order 33 C.P.C. is an enabling provision which allows filing of a suit by an indigent person without paying the court fee at the initial stage. If the plaintiff ultimately succeeds in the suit, the court would calculate the amount of court fee which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person and that amount would be recoverable by the State from any party ordered by the decree to pay the same. It is further provided that when the suit is dismissed, then also the State would take steps to recover the court fee payable by the plaintiff and this court fee shall be a first charge on the subject-matter of the suit. So there is only a provision for the deferred payment of the court fees and this benevolent provision is intended to help the poor litigants who are unable to pay the requisite court fee to file a suit because fo their poverty...."
12.In Mathai M.Paikeday v C.K.Antony [2011 (13) SCC 174] the Hon'ble Supreme Court held as under:
"19.Moreover, the factors such as person's employment status and total income including retirement benefits in the form of pension, ownership of realisable unencumbered assets, and person's total indebtedness and financial assistance received from the family members or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee. Therefore,...."
13.The phraseology "is not possessed of sufficient means" appearing in Explanation I.A (a) to Order 33, Rule I C.P.C. refers to property over which the petitioner has actual control. The said expression does not mean sufficient property and excludes sole means of livelihood. What is contemplated is not possession of property but sufficient means, that is, the capacity to raise money to pay the court-fees.
14.Indigent person means a person not in possession of sufficient means. It does not include the means on which the bare living of party and his family depends. It is the capacity to raise funds by normal available lawful means. The real test for determining whether the plaintiff is possessed of sufficient means to pay the court-fee is whether he is in a position in the ordinary course to convert his possession, if any, into liquid cash without much hardship and delay.
15.To get the leave of the Court the plaintiff must show that she is in indigent circumstances. The crux of the matter is that the plaintiff should not possess any property or means with which she can easily raise the required money to pay the Court fee.
16.In the case before us, the Trial Court noticing that in C.C.No.245 of 1996 the learned Judicial Magistrate, Udhagamandalam has convicted the appellant for offences under
Sections 467 and
420 I.P.C. and awarded her jail term held that "in view of this Criminal case against her she is not entitled to be declared as a pauper".
17.There is no rule or law that a criminal or a convicted person, although an indigent person under Order 33, Rule 1 C.P.C. is disqualified from seeking leave of the Court to sue as an indigent person. The view of the Trial Court that a convicted person cannot be an indigent person is patently wrong.
18.Ex.B1 Sale Deed produced by the defendant discloses that a property has been sold by the plaintiff and her son for Rs.1,00,000/-. Noticing this also the Trial Court had refused her permission. Actually, the Trial Court did not go deep into the matter and decide it in the light of Order 33, Rule 1 of C.P.C.
19.The Court fee due on the plaint is Rs.75,000/-. The plaintiff had only life estate in the said property and the remainder absolutely belonged to her son. On 24.10.1997, under Ex.B1, she joined with her son in selling the said property. Necessarily the buyer will be interested in getting her signature also. So far as the plaintiff is concerned, she had only life estate in the said property.
20.In 1997, the life estate as well as the absolute remainder, were sold for Rs.1,00,000/-. It is inclusive of consideration for her life estate. The suit has been filed in 2002. There is no proof that she is keeping her share of sale proceeds since 1997.
21.The amount required towards Court fee is Rs.75,000/-. The plaintiff is a widow. Now she is 53 years old. Apart from the said life estate sold in 1997, nothing has been established to show that she is possessed of any means in the nature of a property, which she can mortgage, lease out or sell in order to raise money to pay the Court fee. She has nothing to convert into liquid cash. She has no property. She has no money to pay the Court fee. There is no proof that her son or any of her relatives have supplied or supplying her money so that with that she can pay the Court fee. Thus, she is not possessed of sufficient means to pay the court fee. Thus she is an indigent person, within the meaning of Order 33, Rule 1 C.P.C.
22.From the above it is clear that the Trial Court had not viewed the matter in proper perspective. In the facts and circumstances, the Trial Court ought to have granted her leave. Thus, it calls for our interference.
23.In the result, this Civil Miscellaneous Appeal is allowed. The order and decreetal order of the Trial Court in O.P.No.4 of 2004 are set aside. The appellant is granted leave. The Trial Court is directed to take the suit on file without insisting upon payment of Court fee, and proceed further according to law. No costs.
pri To
1.The District Judge, Nilgiris at Uthagamandalam