essentially a negative factor to be established by the claimant
and hence can only be proved by him by adducing positive
evidence of his assets, needs and expenditure and to convince
the Court that with the available resources, he is unable to set
apart sufficient funds to pay court fee. The duty of the Court is
only to decide, on the basis of materials furnished, whether
reasonable grounds have been made out to believe such claim.
This is all the more so, because of the social reality that the
economic situation, availability of resources, and expenditure of
a person depend on various factors, including the size of the
family, the number of dependents, other pressing necessities,
priorities in life, the cost of living index, status in the society,
etc. and hence, the person claiming indigency himself would be
the best judge to evaluate his priorities in life, which cannot be
substituted by the views of the Court unless the court finds it
thoroughly unreasonable. Since the right to life under Article
21 of the Constitution of India takes in right to dignified life,
each person is entitled to make necessary provision for a
reasonable life of himself and family, apart from the bare
necessities of food, shelter and clothing. The courts should not
use the golden scale to weigh the income and expenditure of a
person and decide how best he could have utilized his means,
reduce the expenditure and could have saved money for paying
court fees. In this regard, the observation of the court below
that, even utilising the money from the available source for
payment of court fee, will not in any way affect the decent
living of the petitioners and that will not lead them to poverty is
mispleaded.
15. In spite of several decisions mandating that the litigants
are not expected to sell their property, unfortunately, the court
below arrived at the wrong conclusion that, they could have
mortgaged the property and raised the loan. Further, Paulose
case (supra) was distinguished on a factual premise that, in that
case the extent of land involved was only one and half cents.
The constitutional mandate, the laudable object of Order XXXIII
and spirit of all the decisions referred to above, uniformly calls
for a liberal approach while considering applications for
indigency.
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 21ST DAY OF JULY 2015
FAO.No. 98 of 2015 ()
VELUTHAPARAMBATH VASANTHA,W/O.VASU,AGED 49,
Vs
PURTHALATHKUNIYIL ALAKKADAN CHATHU,S/O.KRISHNAN,
Appellants are aggrieved by the rejection of
O.P.No.4/2012 of the Principal Sub Court, Thalassery, filed
under Order XXXIII Rule 1 CPC seeking leave of the court, to
sue as indigent persons.
2. The predecessor of the appellants/petitioners, had
earlier filed a suit against the respondent herein. Due to that
enmity, the respondent allegedly committed murder of the
predecessor on 18/3/2010 at about 6.30.a.m.,using a
dangerous weapon. Thereafter, the heirs of the deceased filed
the present proceedings before the court below, seeking
compensation of a sum of Rupees Twenty Lakhs from the
respondent. The court fee payable was Rs.1,78,400/-. Claiming
that the petitioners were not possessed of sufficient means to
pay the court fee, the present O.P. was filed. The respondent
appeared and filed a counter affidavit. The District Collector
reported that the petitioners were not in possession of any
properties within Kannur District. On the basis of the report of
the Government, the counter affidavit and the materials on
record, the court below held that the petitioners were possessed
of sufficient means to pay the court fee and consequently
rejected their application.
3. The above order is impugned in this appeal. Heard both
sides and examined the records.
4. According to the petitioners, the first petitioner who was
the wife of the deceased, was working as an autorickhshaw
driver and the petitioners 2 to 4 were students. They owned 59
cents of land in Chendayad desom and also had joint possession
of 1.75 acres with the sister of their predecessor. It was stated
that the properties were planted with coconut and cashew trees
and the annual income was Rs.20,000/- per year. Hence, they
sought leave to sue as indigent persons.
5. The court below, on an evaluation of the materials
placed, held that the petitioners were admittedly in possession of
landed properties which were planted with coconut and cashew
trees. The market value of the properties were not furnished.
The court below further held that the second petitioner was now
working as a Software Engineer at Kozhikode and the 3rd
petitioner as a mason. It was held that they can at least
mortgage a portion of the properties to raise the court fee
payable. It was also held that the decisions cited by the
petitioners were not applicable to the facts and circumstances of
the case.
6. It is pertinent to note that the materials on record
showed that the head of the family was the victim of a crime. It
was admitted case of the petitioners that they owned 59 cents of
land and had half share over 1.75 acres of land. They had also
disclosed the income from the properties. The view of the court
was that they could have mortgaged a portion of the
properties, to raise the court fee. It appears that evidence was
let in to show that, as on the date of evidence, the son of the first
petitioner had completed his study and obtained a job. However,
the details of his income were not on record.
7. Before the court below, various decisions were placed to
support the case of the petitioner. In Sumathikutty Amma
Kamalamma and others v. Narayani Panikkathy
Karthiyayani and others (1972 KLT 783), which is one of the
earliest decisions on this point, it was held that the mere fact
that the petitioner is stated to have some interest in immovable
property by itself, should not be taken to mean that he has the
means to pay the prescribed court fee. The real test is whether
the petitioner is in a position in the ordinary course to convert
his possessions, if any, into liquid cash without undue hardship
and delay for paying the requisite court fee. It was further held
that the court has also a duty to ensure that in no genuine case,
the cause of the litigant should fail, if the enquiry reveals that in
the ordinary course, he is not in a position to raise requisite
amount to pay court fee. The court below also referred to the
decisions reported in Basil Thomas v. Joseph (2013 (2) KLJ
664) and Paulose @ Paulo v. Elias K.Varghese and another
(2012 (1) KLJ 807). In Paulose's case, it was held that the law
does not expect the petitioner to make a distress sale of his only
property and to pay the court fee and thereafter live in penury
or abject poverty. It was reiterated that the benefit under the
Code is conferred on persons without "sufficient means" and not
without any means at all. What is contemplated is not the actual
possession of property, but sufficient means. Even though
sufficient means is not the capacity to raise sufficient funds,
there must be a liberal approach in construing what capacity is.
In Basil Thomas case, a Bench of this Court (to which on one
of us was a party) reiterated that the availability of assets or
wealth does not necessarily mean that a person will have the
sufficient means to pay the court fee. It was opined that there is
no rigid formula which confines the relief under Order XXXIII to
only persons who were essentially striving on poverty line.
8. The Hon'ble Supreme Court had occasion to deal with
the above topic in a decision which was not placed before the
court below. In Mathai M.Paikeday v. C.K.Antony [(2011) 13
SCC 174], it was held that expression 'sufficient means'
contemplates the ability or capacity of a person in the ordinary
course to raise money by available lawful means to pay the court
fee. In Jayaraj K.K. v.Kalyani (2010 (3) KLJ 853), it was held
that the plaintiff, after remitting 1/10th fee payable at the time of
institution of the suit, is still entitled to claim indigency, due to
an honest belief that he would be able to pay the court fee at a
later point of time. In A.Prabhakaran Nair v.
K.P.Neelakantan Pillai (1987 (2) KLT 376), it was held that
possession of sufficient means refers to possession of sufficient
realizable property. The property that is yet to be realised or an
asset which is not within the immediate reach of the plaintiff to
be converted into cash for payment of court fee cannot be taken
into account in calculating sufficient means .
9. Underlying principle in all the above cases is that the
possession of immovable property does not by itself indicate that
the one has sufficient means to pay the court fee. The above
decisions also emphasise the duty of the courts to construe the
provisions in a liberal, pragmatic way and without sacrificing the
social justice element and the Constitutional demands. It was
held that the benefit of statute is conferred on persons without
sufficient means and not without any means at all. The view
taken by the courts in all the above decisions consistently
exhibits the anxiety of the courts to ensure that every litigant,
though not poor, but does not posses sufficient means to seek his
redressal of grievance, shall not be deprived of the right to
access to justice. Article 39A of the Constitution of India directs
the State to ensure this solemn object. The scheme of the
statute also gives sufficient indication of its anxiety to ensure
access to justice to the poor and needy.
10. Reference to Order XXXIII of Code of Civil Procedure
indicate that it is eminently pro litigant, and has a strong socio
economic content. Order XXXIII provides a self contained
scheme to facilitate access to justice to the poor. It
contemplates a mechanism to weed out unnecessary applications
at the threshold, by conducting an enquiry into the means of the
petitioner under Rule 1A, to be done by the Chief Ministerial
Officer of the Court, unless the Court otherwise directs. It
further provides for examination of the applicant or his agent
under Rule 4 and after conducting sufficient enquiry, to allow or
to reject the application under Rule 5. Thereafter, a further
procedure is contemplated under Rule 6 for receiving evidence
regarding the indigency with notice to the Government Pleader
and opposite parties. This detailed two tier mechanisum
provided under the Act with its inbuilt safeguards is intended to
ensure that only genuine, bona fide and legitimate persons seek
indigency.
11. Even after permitting the person to institute a
suit as an indigent person under Rule 9 the court continues to
retain the power to withdraw at any time, the permission to
sue as indigent person. Rules 10,11, 11A and 14 provides for
recovery of costs and the court fee. where the plaintiff
succeeds, looses or abandon the case. A Perusal of the above
provisions show that an indigent person is not completely
exempted from payment of court fee and the liability to pay
court fee at initial stage is only deferred to a later stage, to be
recovered in accordance with the outcome of the litigation.
(Ref. R.V.Dev v.Government of Kerala [(2007) 5 SCC 698]
12. The spirit of the Statute, which is in tune with
Article 39A of the Constitution, is also evident from Rule 9A,
which permits the court to assign a pleader to an unrepresented
indigent person. Rule 18 empowers the Government to provide
for free legal services to indigent persons. Rule 17 provides
that even an indigent person raising set off or counter claim, is
entitled to claim indigency. In Mathai M.Paikaday's case (supra),
the Hon'ble Court referred to the earlier judgment in A.A.Haja
Muniuddin v. Indian Railways [(1992) 4 SCC 736} wherein it
was held that access to justice cannot denied to an individual
merely because, he does not have the means to pay the
prescribed fee. In Union Bank of India v. Khader
International Construction [(2001) 5 SCC 22] it was held that
order XXXIII is a benevolent provision intended to help poor
litigants. It is pertinent to note that even original heading of
Order as 'suits by paupers' was substituted by Act 104 of 1976
on a reasoning that the expression pauper was in appropriate
and did not convey the real intention of the statute.
13. Constitutional mandate under Article 39A and Order
XXXIII, as explained in the various decisions referred above,
impose a solemn duty on the courts not only to ensure that
access to justice is not denied to the poor and needy, but also to
ensure that they have access to justice. The various provisions
incorporated in the Order XXXIII are intended to act as tools for
advancing justice to the poor and not to act as spokes in their
tread towards justice.
14. The concept of "not possessed of sufficient means" is
essentially a negative factor to be established by the claimant
and hence can only be proved by him by adducing positive
evidence of his assets, needs and expenditure and to convince
the Court that with the available resources, he is unable to set
apart sufficient funds to pay court fee. The duty of the Court is
only to decide, on the basis of materials furnished, whether
reasonable grounds have been made out to believe such claim.
This is all the more so, because of the social reality that the
economic situation, availability of resources, and expenditure of
a person depend on various factors, including the size of the
family, the number of dependents, other pressing necessities,
priorities in life, the cost of living index, status in the society,
etc. and hence, the person claiming indigency himself would be
the best judge to evaluate his priorities in life, which cannot be
substituted by the views of the Court unless the court finds it
thoroughly unreasonable. Since the right to life under Article
21 of the Constitution of India takes in right to dignified life,
each person is entitled to make necessary provision for a
reasonable life of himself and family, apart from the bare
necessities of food, shelter and clothing. The courts should not
use the golden scale to weigh the income and expenditure of a
person and decide how best he could have utilized his means,
reduce the expenditure and could have saved money for paying
court fees. In this regard, the observation of the court below
that, even utilising the money from the available source for
payment of court fee, will not in any way affect the decent
living of the petitioners and that will not lead them to poverty is
mispleaded.
15. In spite of several decisions mandating that the litigants
are not expected to sell their property, unfortunately, the court
below arrived at the wrong conclusion that, they could have
mortgaged the property and raised the loan. Further, Paulose
case (supra) was distinguished on a factual premise that, in that
case the extent of land involved was only one and half cents.
The constitutional mandate, the laudable object of Order XXXIII
and spirit of all the decisions referred to above, uniformly calls
for a liberal approach while considering applications for
indigency.
16. In the light of the above findings, order of the court
below is not sustainable and is liable to be set aside. In the
result, the appeal is allowed and the impugned order is set
aside. O.P.No.No.4/2012 stands allowed and the petitioners are
permitted to sue as indigent.
The appeal is allowed as above.
Sd/-
THOTTATHIL B.RADHAKRISHNAN
Judge
Sd/-
SUNIL THOMAS
Judge
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