Dr. Neena Mohan v. John Varghese & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940** **FAO.No. 193 of 2016** **AGAINST THE ORDER IN IOP 3/2015 of PRINCIPAL SUB COURT, KOZHIKODE DATED 24-02-2016** ## **APPELLANT/ 1ST PETITIONER :** **DR.NEENA MOHAN, AGED 52 YEARS, W/O DR.K.CHANDRAMOHAN, RESIDING AT TAPASYA EAST HILL ROAD, ERANHIPALAM P.O., KOZHIKDOE, NOW RESIDING AT 7/A, SREEROSH-SEA FACE APARTMENTS, PANIKKER ROAD, KOZHIKODE** **BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENTS/ RESPONDENTS AND 2ND PETITIONER :** **1 JOHN VARGHESE, S/O. VARHESE, AGED 45 YEARS, RESIDING AT THEKADIYIL HOUSE, P.O.MANTHURUTHI, NEDUKUNNAM PANCHAYATH, MANTHURUTHI DESOM, KOTTAYAM - 686 542** **2 THE MANAGER, HOUSING FINANCE CORPORATION LIMITED, RAVIPURAM BRANCH, RAVIPURAM JUNCTION, M.G.ROAD, ERNAKULAM, KOCHI - 682 015** **3 THE AUTHORIZED OFFICER, HOUSING DEVELOPMENT FINANCE CORPORATION LTD., HDFC HOUSE, P.B.NO.1667, RAVIPURAM JUNCTION, M.G.ROAD, KOCHI - 682 015** **FAO.No. 193 of 2016** 2 **4 HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, RAMON HOUSE, H.T.PAREKH MARG, 169, BACKBAY RECLAMATION, CHURCH GATE, MUMBAI - 400 020** **5 BINDU JOHN, W/O. JOHN VARGHESE, RESIDING AT THEKADAYIL HOUSE, P.O. MANTHURUTHI, KOTTAYAM - 682 015** **6 DEVASENA AMMA, AGED 78 YEARS, W/O. RAMANKUTTY NAIR, 53/2281, DREAMLAND, EAST HILL ROAD, ERANJIPALAM POST, KOZHIKODE - 673 006, NOW RESIDING AT 7/A, SREEROSH SEA FACE APARTMENTS, PANIKKER ROAD CALICUT** **BY ADVS. SRI.V.K.PEERMOHAMED KHAN SMT.S.AMBILY SMT.P.ELSAMMA JOSEPH SRI.ABILASH THOMAS SRI.K.K.CHANDRAN PILLAI (SR.) SRI.K.V.KRISHNAKUMAR** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **FAO.No. 193 of 2016** 3 ## **JUDGMENT** ## Annie John, J. The appellant being aggrieved by the order of the court below dismissing her application to suit as an indigent has preferred this appeal. The appellant is the first petitioner in the said application. The 6[th] respondent is the other applicant. The suit has been filed for declaring sale deed No.2566/2012 of SRO West Hill dated 08.10.2012 with respect to the plaint schedule property as null and void, not acted upon, not binding on the petitioners and the plaint schedule property, that it will not confer any right or title to the first respondent and the charge created by the 2[nd] respondent as illegal and not binding on the plaintiffs among other reliefs. In fact, the appellant had borrowed some amount **FAO.No. 193 of 2016** 4 from the first respondent for clearing certain debts which she incurred at the time of the marriage of her daughter. On the insistence of the first respondent, the appellant and the 6[th] respondent happened to execute the said deed as a security and it was not intended to be a sale deed. In fact, the property is worth much more than the consideration shown in the document. 2. In fact, the appellant had repaid substantial portion of the amount borrowed by way of cheques in favour of the first respondent and the 5[th] respondent. However, the respondents 1 and 5 in collusion with 2 to 4 created an respondents equitable mortgage by offering the plaint schedule property as security. They created fraudulent documents. Immediately on coming to know about this, the appellant has preferred complaints **FAO.No. 193 of 2016** 5 against respondents 1 and 5 as well as the bank authorities who had colluded with respondents 1 and 5. The police after investigation has registered a crime against respondents 1 and 5. Now the court fee payable in the suit is Rs.10,78,450/-. Though the appellant is a registered medical practitioner by profession, she is unable to pay the requisite court fee. Therefore, she sought to file the suit as _informa pauparis_ . The report obtained by the District Government Pleader also that says apart from the plaint schedule property, the petitioners in the proceedings are not having any property. The only source of income of the appellant as well as her parents is the income she gets as a resident doctor. But the court below without considering the report filed by the Government Pleader and the counter filed by **FAO.No. 193 of 2016** 6 the 2[nd] respondent had opined that the appellant should be examined as contemplated under the statute. Unfortunately on the date, the case was posted for taking appellant's evidence, the appellant, who is a resident doctor could not avail leave and an adjournment was sought on her behalf. But, no time was granted. Accordingly the application was dismissed. According to the appellant, the order passed by the lower court is against law and the court below would not accepted the report of the Government Pleader regarding the financial condition of the appellant. The rejection of the application to sue as an indigent person by the appellant was not for any of the reasons stated under Rule 5 of Order XXXIII. Therefore, the appellant prays for allowing the appeal and permit her to continue as a _suit_ **FAO.No. 193 of 2016** 7 . _pauparis_ 3. The learned counsel for the appellant has strenuously argued before us by stating that the appellant is having insufficient means to pay the court fee. It is an admitted fact that she is a resident doctor and getting Rs.60,000/- per month as salary. The case advanced by the appellant is that she is residing in a rented house paying Rs.25,000/- per month and her son is studying for B.Tech at Chennai. She has to pay Rs.5,00,000/- towards her son's educational expenses. Th 6[th] respondent herein, who is the 2[nd] appellant is the mother of the appellant herein and the father of the appellant is 92 years old suffering from different diseases. It was also stated that the appellant has engaged a Home Nurse to look after her parents **FAO.No. 193 of 2016** 8 and the monthly salary of the Home Nurse is Rs.15,000/-. Further she has contended that appellants have no sufficient means to pay Rs.10,78,450/- for paying the court fee. 4. On the basis of the argument on either side, we have gone through the order passed by the court below. It was understood that the case was posted for appellant's evidence on 19.02.2016. On that date, the appellants and the 6[th] respondents were absent. So the case was again adjourned to 20.02.2016. On that day, the appellants and the 6[th] respondent were absent. A petition was filed on their behalf seeking amendment of the plaint. So, again the case was adjourned to 22.02.2016. On that day, the amendment petition was allowed and the case was adjourned **FAO.No. 193 of 2016** **==> picture [6 x 8] intentionally omitted <==** to 24.02.2016 for appellant's evidence. On 24.02.2016 also, the appellants remained absent and no petition was filed to adjourn the case. IA.No.3/2015 was filed under Order XXXIII Rule 1 C.P.C. When the appellant seeks time to file exemption from payment of court fee, it is the duty of the appellant to convince the court that the appellants as well as the 6[th] respondent has no means to pay the court fee to be paid in this case. Rs.10,78,450/- is the court fee assessed by the appellants to be paid by them. 5. It is an admitted fact that the first appellant is a doctor by profession and she is getting Rs.60,000/- per month as salary. It was also admitted that she owns a Maruti car. In addition to that, she has stated that **FAO.No. 193 of 2016** **==> picture [12 x 8] intentionally omitted <==** her son is studying in Chennai for B.Tech and she has to meet the educational expenses i.e. nearly Rs.5,00,000/-. She has also appointed a Home Nurse for looking after her parents and further she is residing in a rental building. Rs.25,000/- is to be paid as rent. 6. The learned counsel for the appellant had cited a ruling held in _**Pathumma v. K.S.E.B [1997 (2) KLT 227]**_ wherein it has held that the question to be considered is not mere possession of property by the appellants, but sufficient means, that is the capacity to raise to court fee and it is money pay incumbent upon the court to come to a finding on that point. The capacity to raise money is the crux on the matter and this turns on immediate convertibility of the property into **FAO.No. 193 of 2016** 11 cash. The C.P.C. confers the benefit on persons without 'sufficient means'. It refers not to a person without any means. On the other hand, the expression used is “sufficient means” which is, means sufficient to pay court fee after meeting the basic needs of life. The possession of “sufficient means” in Order 33 R.1 CPC means possession of sufficient realisable property within the immediate reach of the plaintiff(s) which can be immediately converted into cash. Debts due to be realised or assets not within the immediate reach of the plaintiff(s) to be converted into cash cannot therefore, be taken into consideration for calculating sufficient means. If the requirement of law is that, a person has to sell whatever little he possesses in this world or beg, borrow or steal to raise money for **FAO.No. 193 of 2016** **==> picture [12 x 8] intentionally omitted <==** payment of court fee, that will be too harsh an approach to the problem resulting in manifest in justice cutting at the very root of the basic values and ideals of administration of justice in a welfare-State. 7. So, stressing on the above such ruling, the learned counsel for the appellants has argued that mere possession of the property is not sufficient to establish that the appellant is having sufficient means to pay the court fee. 8. The learned counsel for the respondent has strongly opposed the argument advanced by the appellants' counsel and stated that sufficient means is to be calculated on the basis of the annual income which derives only the income of the entire family. In **FAO.No. 193 of 2016** **==> picture [12 x 8] intentionally omitted <==** support of his argument, he has cited a ruling held in _**Mathai M.Paikeday v C.K. Anthony [AIR**_ _**2011 SC 3221]**_ wherein it has held that expression “sufficient means”-Contemplates or of in ability capacity person ordinary course to raise money by available lawful means to pay Court-fee. 9. Order 33, Rule 1 of the C.P.C. provides for institution of suits by indigent person. 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_ **FAO.No. 193 of 2016** **==> picture [12 x 8] intentionally omitted <==** _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_ **FAO.No. 193 of 2016** 15 _in a representative capacity, the question whether he is an indigent person shall be determined with to the means reference possessed by him in such capacity].”_ 10. Order 44 of C.P.C. provides for institution of an appeal as an indigent person. The provision reads thus: **“** _**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 persons], in so far as those_ **FAO.No. 193 of 2016** 16 ## _provisions are applicable.”_ 11. In effect, the object of both the provisions cited above 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 in _forma pauperis_ 12. In paragraph 16 of the above said ruling it was stated as follows :- “16. The concept of indigent person has been discussed in Corpus Juris Secundum (20 C.I.S. Costs § 93) as follows :- _“§.93. What constitutes indigency : The right to sue in forma paueris is restricted to indigent_ **FAO.No. 193 of 2016** 17 _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 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”._ 13. Therefore, the indigent person, in terms of Explanation I to Rule I of Order 33 of the Code of Civil Procedure, is one who is either not possessed of sufficient means to pay **FAO.No. 193 of 2016** 18 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. 14. the is a Admittedly, appellant resident doctor and she earns Rs.60,000/- per month. In addition to that she is having property and owned car etc. The counsel has again argued that in similar cases, the appellant is permitted to file a suit as _forma pauperis._ It is true that the appellant has obtained interim orders from this Court in another case, but it was not a speaking order. During argument, it has come out that the husband of the appellant is also a doctor. But the income of the husband of the appellant is also not mentioned in the petition. **FAO.No. 193 of 2016** 19 15. In _**Mathai M.Paikeday'**_ s case it has held that “the indigent person, in terms of Explanation I to Rule I of O.33 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. 16. In both cases, the property exempted from the attachment in execution of decree and subject matter of the suit shall not be taken into account to calculate financial worth or of such ability indigent person. Moreover, the factors such as the person's employment status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets and **FAO.No. 193 of 2016** 20 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 is person possessed of sufficient means or indigent to pay requisite court fee. 17. While considering the indigence of a person, 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 indebtedness and financial assistance received from the family members or close friends can be taken into account in order to determine whether a is person possessed of sufficient means or indigent to pay requisite Court-fee. Therefore the **FAO.No. 193 of 2016** **==> picture [12 x 8] intentionally omitted <==** expression “sufficient means”-in Order 33 Rule I of Code of Civil Procedure contemplates or of in ability capacity person ordinary course to raise money by available lawful means to pay Court-fee. 18. In this case the appellant has deposed that her husband is also a doctor, who is practicing. Anyhow, the evidence adduced by the appellant is not sufficient enough to establish that she is unable and not capable of paying court fee in this case and the material suppression of the facts regarding income is also sufficient enough to reject the petition seeking permission to file the appeal as an indigent. In this case, the appellant has miserably failed to establish that she is an **FAO.No. 193 of 2016** 22 indigent person. Therefore, she is not to sue as an permitted indigent person. Therefore, I find that the order passed by the Principal Sub Court, Kozhikkod in IOP.No.3/2015 is only to be confirmed. In the result, this appeal is dismissed. Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM