Mathai M Paikeday vs C.K.Anthony

Mathai M. Paikeday .............. Appellant

versus

C.K. Antony .............. Respondent

With

CIVIL APPEAL NO.5494 OF 2011

(Arising out of S.L.P. (C) No. 22472 of 2009)

O R D E R

H.L. Dattu, J.

Delay condoned.

1) Leave granted.

2) These appeals, by special leave, are directed against the common

final order passed by the High Court of Kerala at Ernakulam in

C.M.C.P. Nos. 53 and 60 of 2004 dated 11.08.2008, whereby the

High Court has allowed the petitions and has permitted the

respondent to prosecute the appeals as an indigent person.

3) The brief factual matrix relating to these appeals :- The appellant

had filed two suits for recovery of money against the respondent,

who is a retired Deputy Conservator of Forest drawing a pension

of `10,500/-. These suits were decreed in favour of the appellant.

Being aggrieved, the respondent had preferred Regular First

Appeals before the High Court of Kerala along with petitions to

prosecute the said appeals as an indigent person under Order 44

Rule 1 of the Code of Civil Procedure, 1908. The High Court of

Kerala, without holding any inquiry as contemplated under

Order 33 Rule 1A of the Code of Civil Procedure, permitted the

respondent to institute the said appeals as an indigent person,

against which a special leave petition was preferred before this

Court. This Court remanded the matter to the High Court for

passing fresh orders after conducting an inquiry in accordance

with Order 33 Rule 1A of the Code of Civil Procedure.

4) Subsequently, the High Court after conducting the inquiry into

the means and financial capacity of the respondent, has

permitted the respondent to prosecute Regular First Appeals as

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an indigent person vide its order dated 11.08.2008. Aggrieved by

the same, the appellant is before us in these appeals.

5) The issue involved in the present appeals for our consideration

is: Whether the respondent is an indigent person as not

possessed of sufficient means to pay the court fees and,

consequently, entitled to avail the benefits under Order 44 of the

Code of Civil Procedure.

6) Shri. Jawahar Lal Gupta, learned senior counsel, appears for the

appellant and the respondent is represented by Shri.

Subramonium Prasad, learned counsel.

7) The learned senior counsel Shri. Jawahar Lal Gupta submits that

the respondent has admitted during the inquiry before the High

Court that he is a retired Government employee and receives

`10,500/- by way of pension and also receives money from his

son who is employed in a foreign country. The learned senior

counsel further submits that the respondent had failed to produce

passbooks of his bank account in order to deny the fact of

receiving money from his son. In other words, the failure of the

respondent to produce bank accounts and passbooks amounts to

suppression of the fact of receiving substantial amount of money

from his son. The learned senior counsel further argues that the

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respondent is having sufficient means to pay court fees and is

not entitled to prosecute the Regular First Appeals before the

High Court as an indigent person in terms of Order 44 Rule 1 of

the Code of Civil Procedure.

8) These arguments of the learned senior counsel for the appellants

were refuted by Shri. Subramanion Prasad, the learned counsel

for the respondent, who supported the impugned final order of

the High Court.

9) Order 33 of the Code of Civil Procedure deals with suits by

indigent persons whereas Order 44 thereof deals with appeals by

indigent persons.

10) Order 33 Rule 1 of the Code of Civil Procedure provides for

instituting of suits by indigent person, stating:

"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 (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

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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."

11) Order 44 of Code of Civil Procedure provides for instituting an

appeal as an indigent person. The provision reads :-

"1. Who may appeal as an indigent person - Any

person entitled to prefer an appeal, who is unable

to pay the fee required for the memorandum of

appeal, may present an application accompanied

by a memorandum of appeal, and may be allowed

to appeal as an indigent person, subject, in all

matters, including the presentation of such

application, to the provisions relating to suits by

indigent person, in so far as those provisions are

applicable."

12) 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

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the first instance and allows him to institute suit or prosecute

appeal in forma pauperis.

13) In A.A. Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736,

this Court has observed:

"5. ... Access to justice cannot be denied to an

individual merely because he does not have the

means to pay the prescribed fee."

14) In Union Bank of India v. Khader International Construction,

(2001) 5 SCC 22, this Court has held:

"20. Order 33 CPC 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 of their poverty.

Explanation I to Rule 1 Order 33 states that an

indigent person is one who is not possessed of

sufficient amount (other than property exempt from

attachment in execution of a decree and the

subject-matter of the suit) to enable him to pay the

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fee prescribed by law for the plaint in such suit. It

is further provided that where no such fee is

prescribed, if such person 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 he would

be an indigent person."

15) In R.V. Dev v. Chief Secretary, Govt. of Kerala, (2007) 5 SCC

698, this Court has held:

"8. Order 33 of the Code of Civil Procedure deals

with suits by indigent persons whereas Order 44

thereof deals with appeals by indigent persons.

When an application is filed by a person said to be

indigent, certain factors for considering as to

whether he is so within the meaning of the said

provision are required to be taken into

consideration therefor. A person who is permitted

to sue as an indigent person is liable to pay the

court fee which would have been paid by him if he

was not permitted to sue in that capacity, if he fails

in the suit at the trial or even without trial.

Payment of court fee as the scheme suggests is

merely deferred. It is not altogether wiped off."

16) The concept of indigent person has been discussed in Corpus

Juris Secundum (20 C.J.S. Costs ' 93) as following:

"' 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

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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 unencumbered 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."

17) The eligibility of person to sue in forma pauperis has been

considered in American Jurisprudence (20 Am. Jur. 2d Costs '

100) as thus:

"' 100. Eligibility to sue in forma pauperis;

generally: The burden of establishing indigency is

on the defendant claiming indigent status, who

must demonstrate not that he or she is entirely

destitute and without funds, but that payments for

counsel would place an undue hardship on his or

her ability to provide the basic necessities of life

for himself or herself and his or her family.

Factors particularly relevant to the determination

of whether a party to a civil proceeding is indigent

are: (1) the party's employment status and income,

including income from government sources such as

social security and unemployment benefits; (2) the

ownership of any unencumbered assets, including

real or personal property and monies on deposit;

and finally (3) the party's total indebtedness and

any financial assistance received from family or

close friends. Where two people are living together

and functioning as a single economic unit, whether

married, related, or otherwise, consideration of

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their combined financial assets may be warranted

for the purposes of determining a party's indigency

status in a civil proceeding."

18) To sum up, the indigent person, in terms of explanation I to Rule

1 of Order 33 of the Code of Civil Procedure, is one who is

either not possessed of sufficient means to pay court fee when

such fee is prescribed by law, or is not entitled to property worth

one thousand rupees when such court fee is not prescribed. In

both the cases, the property exempted from the attachment in

execution of a decree and the subject-matter of the suit shall not

be taken into account to calculate financial worth or ability of

such indigent person. Moreover, the factors such as person's

employment status and total income including retirement

benefits in the form of pension, ownership of realizable

unencumbered assets, and person's total indebtness and financial

assistance received from the family member 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, the expression "sufficient means" in Order 33

Rule 1 of the Code of Civil Procedure contemplates the ability

or capacity of a person in the ordinary course to raise money by

available lawful means to pay court fee.

9 19) Admittedly the respondent is a retired Deputy Conservator of

Forest, Government of Kerala and drawing a pension of

`10,500/-. It was also stated by him in his deposition before the

High Court on 03.01.2008 that his son is employed abroad and

does not regularly send him money and in response to a

suggestion, whether his bank account discloses the amount of

money sent by his son, he does not deny the suggestion.

However, it is noteworthy to mention that respondent has never

denied that his son sends him money. Furthermore, the

respondent had failed to establish that the amount of money

received from his son is not substantial or insufficient to pay

court fee by not producing passbook of his bank account. In our

considered opinion, non-production of bank account transaction

details, amounts to suppression of the facts and in view of this,

an adverse inference can be drawn against the respondent that he

is receiving a substantial or sufficient amount of money from his

son. Therefore, the amount of money received by the respondent

from his son and by way of pension amounts to a sufficient

means to pay court fee which disentitles him to be an indigent

person under Order 33 Rule 1 and Order 44 Rule 1 of the Code

of Civil Procedure.

1 20) In the light of above discussion and facts and circumstances of

the present case, the respondent cannot be declared as an

indigent person in order to prosecute Regular First Appeals

before the High Court. Accordingly, the present appeals are

allowed and the impugned final order of the High Court dated

11.08.2008 is set aside. However, the respondent is granted

45 days time from today to deposit the court fee if he desires to

prosecute Regular First Appeals filed before the High Court.

Costs are made easy.

.............................J.

[G.S. SINGHVI ]

...........................J.

[H.L. DATTU ]

New Delhi,

July 11, 2011

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