M.S.VINAYAN v. SUGANDHI

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940 ## OP(C).No. 346 of 2013 AGAINST THE ORDER DATED 17.07.2012 IN POP 33/2006 of I ADDL.SUB COURT, THRISSUR ## PETITIONER: M.S.VINAYAN, S/O. MOOTHERI SEKHARAN, PAZHUVIL DESOM, KURUMBILAVU VILLAGE, THRISSUR TALUK. BY ADVS. SRI.HARISANKAR V. MENON SRI.MAHESH V.MENON ## RESPONDENT: SUGANDHI,W/O. MOOTHERI VASANTHAN, CHAZHUR DESOM, KURUMBILAVU VILLAGE, THRISSUR TALUK - 680 013 BY ADVS. SRI.N.U.HARIKRISHNA SRI.G.SREEKUMAR (CHELUR) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19.03.2018, THE COURT ON 16.11.2018 PASSED THE FOLLOWING: O.P.(C) No.346/2013 -2- ## **JUDGMENT** The petitioner is the defendant in P.O.P.No.33/2006 before the 1[st] Additional Sub Court, Thrissur. The respondent is the plaintiff/ petitioner in the above case. The suit has been filed by the respondent herein for realisation of an amount of Rs.10,60,000/-, being the amount allegedly borrowed by the petitioner. The case of the respondent/ plaintiff is that towards the borrowed amount, the defendant has issued cheque for the same amount, and the same was dishonoured. 2. The respondent has filed the above case as an indigent person for the reason that, she has no “sufficient means” to pay the court fee of Rs.1,04,710/-. The respondent/ plaintiff has filed detailed list of both movable and immovable assets in her possession. She has also stated that she is not having any ornaments or property and had not assigned or purchased any property within a period of three months from the date of petition. A true copy of P.O.P.No.33/2006 pending before the First Additional Sub Court, Thrissur is produced and marked as Ext.P1. 3. The petitioner has filed a detailed counter stating that the respondent is having sufficient income to pay the court fee. The respondent had ornaments in her hand and also having sufficient amount in her Bank account. Moreover, her husband is working abroad and he is O.P.(C) No.346/2013 -3- getting a huge amount as salary. In fact, the respondent and her husband are jointly conducting the case. Therefore, the income, she is getting from her husband is also to be considered. A true copy of counter in P.O.P.No.33/2006 filed on 07.10.2009 is produced and marked as Ext.P2. 4. The respondent herself was examined as PW1. On 04.02.2010, the respondent has filed chief affidavit and she was examined in cross on the same day, in which she has admitted that, she is having accounts with some other Banks and this was not mentioned in the indigent petition as well as the chief affidavit. True copy of chief affidavit and deposition of the respondent before the Addl. Sub Court, Thrissur in P.O.P.No.33/2006 on 04.02.2010 are produced and marked as Exts.P3 & P3(a). 5. The petitioner has filed a petition to summon documents from the concerned Banks in which the respondent is having account and the Managers of those Banks were also examined as RWs1 to RW4 and Exts. X1 to X4 documents were marked. True copy of deposition of RW1 to RW4 and documents produced by them are produced and marked as Exts.P4 to P4(c) and P5 to P5(b). 6. After the closure of evidence, the respondent herein has filed a petition to reopen her evidence and recall her and allow her to adduce further evidence as PW1. True copy of the petition filed by the O.P.(C) No.346/2013 -4- respondent herein on 30.09.2011 to re-open the evidence is produced and marked as Ext.P6. 7. The court below allowed the petition to reopen the evidence and recalled her and adduced evidence. True copy of evidence adduced by PW1 on 16.11.2011 is produced and marked as Ext.P7. 8. The lower court, by its order dated 17.07.2012 in P.O.P.No.33/2006 has allowed the respondent to institute the suit as an indigent person. A true copy of the order dated 17.07.2012 in P.O.P.No.33/2006 of the 1[st] Additional Sub Court, Thrissur is produced and marked as Ext.P8. 9. It was further stated by the petitioner that the lower court was not considered the fact that the petitioner has suppressed the material facts from the court and that itself is sufficient to disallow the order of the 1[st] Additional Sub Court, Thrissur. So, on the grounds as urged, the petitioner has sought for setting aside Ext.P8 order issued by 1[st] Additional Sub Court, Thrissur. 10. The main argument on the side of the petitioner was that the respondent is having sufficient amount to pay the court fee. She has suppressed the materials facts from the court and moreover, she is having Bank balance, gold ornaments and she is also getting income from her husband. These facts were not considered by the lower court below. O.P.(C) No.346/2013 -5- 11. The respondent has filed a suit for recovery of Rs.10,60,000/- from the petitioner. The court fee fixed was Rs.1,04,710/-. According to the respondent, she is not capable of depositing Rs.1,04,710/- as she has no sufficient means to pay the court fee. She has stated that she is not having any ornaments or property and she had not assigned or purchased any property within the period of three months from the date of this petition. 12. When the respondent was examined as PW1, she has assertively stated that she is not having sufficient income to pay the court fee. _Per contra_ , the petitioner has challenged such claim put forward by PW1. During cross examination, PW1 has admitted that she was having accounts with some Banks. The petitioner was attempted to prove that the respondent was having sufficient income as she is having Bank balance. In order to establish the same, the Bank Managers were examined as RWs1 to RW4. Exts.X1 and X2, proved through RW1 and RW2 would show that the respondent was having accounts with two Societies. Ext.X1 would show that the transaction in that account was till 19.11.2004 only and the balance amount in the account is Rs.2,874/-. Ext.X2 would show that the last transaction was in the year 2001 and the balance available was Rs.31.64/- only. Ext.X3 proved through RW3 would show that the petitioner was having an account with ICICI Bank and it was operated till 14.09.2004 only. As O.P.(C) No.346/2013 -6- per Ext.X3, she is not having substantial amount in her account on the date of filing of this petition. Ext.X4 proved through RW4 would show that the respondent was having an account in the Catholic Syrian Bank, Anthikkad branch. But, it would also show that in the year 2006, the balance available in that account was Rs.127/- only. Ext.X4 would show that certain amount came in her account subsequent to the filing of this petition and such amounts were withdrawn also. But, these facts were not stated in the proof affidavit filed by the respondent. 13. Ext.X4 would show that certain amounts were credited in that account subsequent to the filing of this petition and those amounts were also withdrawn. In fact, these facts were not mentioned in the proof affidavit filed by the petitioner. Subsequent to the production of Ext.X4, the respondent has filed a petition to recall PW1 and it was allowed. Accordingly, PW1 had given explanation for the arrival and withdrawals of amount in that account. She has explained that her daughter is a scholarship winner of UNISEF and she is studying in Newyork Medical University, for which she had pledged the ornaments of her sister-in-law and obtained Rs.80,000/- and credited in Ext.X4 on 14.10.2008. That amount was withdrawn and spent for purchasing cloths, text books and study materials to her daughter. Thereafter, Rs.2,00,000/- were also credited in her account on 24.04.2009 and it was remitted by the wife of her husband's friend and it was withdrawn O.P.(C) No.346/2013 -7- for meeting her domestic needs. Thereafter, an amount of Rs.1,13,500/was credited in her account on 22.04.2010 and it was sent by her husband's brother and it was converted to US Dollars on the very same day and sent to her daughter. It is true that the amount was converted to US Dollars on 22.04.2010. As per Order XXXIII of the Code of Civil Procedure, the court below is bound to look into whether the person who pleads the claim had to prove that he/she had any sufficient means to pay all the court fees. In fact, in this case, it is proved that the respondent has suppressed the material facts from the court. She has not narrated the entire facts in the proof affidavit also and subsequent to the production of Ext.X4 document, PW1 had again came up before the court and explained the possession and expenditure of money by her. So, as per Ext.X4 document, it is quite clear that she was having sufficient fund to pay the court fee even after filing of the petition. Moreover, she has admitted that her husband is working abroad. **14.** The entries in Ext.X4 would show the conversion to US Dollars on 22.04.2010. The case of the respondent is that the amount as stated in Ext.X1 was sent by her husband's brother and it was converted to US dollars on the very same day and the same was sent it to her daughter. It is settled position that an indigent person need not be bereft of material possession. The Civil Procedure Code confer that benefit on the person without sufficient means and it refers not a person O.P.(C) No.346/2013 -8- without any means. It is also borne out that the respondent was holding bank account with sufficient amount in her account during the pendency of the indigent petition. But the facts has not been mentioned in the proof affidavit. According to her, it was only an omission, including the details of the money transaction seen in Ext.X4 in the proof affidavit and that she has given proper explanation for the expenditure of such amount which had in her account. **15.** In _**Mathai M. Paikeday v. C.K Anthony**_ [AIR 2011 SC 3221], it is held that pension received by person, ownership of realizable unencumbered assets and financial assistance received from family members and close friends can be considered while deciding the indigence of a person. Paragraphs 16 and 17 of the said decision read thus: “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 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.” O.P.(C) No.346/2013 -9- 17. The eligibility of person to sue _in forma pauperis_ has been considered in American Jurisprudence (20 Am. Jur. 2d Costs§ 100) 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 their combined financial assets may be warranted for the purposes of determining a party's indigency status in a civil proceeding.” On the basis of the above, an 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 court fee is prescribed by law, or is not entitled to property worth Rs.1000/- when such court fee is not prescribed. 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 the financial worth or ability of such indigent person. Moreover, the factors such as person's employment status and total income, including the retirement benefits in the form of pension, ownership of realizable unencumbered assets and person's total indebtedness 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 O.P.(C) No.346/2013 -10- to pay the requisite court fee. This fact has been reiterated in _**Mathai M. Paikeday v. C.K Anthony**_ [AIR 2011 SC 3221], wherein it is held that pension received by person, ownership of realizable unencumbered assets and financial assistance received from family members and close friends can be considered while deciding the indigence of a person. 16. In the instant case, it is an admitted fact that the respondent's husband is working in abroad. She is having sufficient transaction as borne out in Exts.X1 to X4 and that itself is sufficient to prove that she has sufficient means to pay the court fee. There is no need to amend the plaint by incorporating the facts subsequently brought out by the respondent. It is none of the business of the petitioner to dispute the claim put forward by the respondent. It is a matter between the respondent and the Government. But here the petitioner has challenged the claim of the respondent that she is an indigent person and on production of the documents, especially Ext.X4 it is proved by the petitioner that the respondent had sufficient money transaction through her accounts and therefore, it is sufficient to establish that she is having sufficient means to pay the court fees. The court below has permitted the petitioner to file the suit as an indigent person without knowing the crux and the importance of Order 33 Rule 1 of CPC. Order 33 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 O.P.(C) No.346/2013 -11- 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. The main intention of Order 33 CPC is to help the poor litigants, who are unable to pay the requisite court fee, to file a suit because of poverty. 17. 'Indigency' also means the right to sue in ' _forma pauper'_ 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 fee 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. ## 18. It was held in _**Mathew v. State of Kerala**_ **(1996 (2) KLT** **363)** that when an applicant does not disclose an asset held by him in his application, whatever be the reason on the wording of Rule 1 Order 33, it is clear that the application is liable to be rejected in terms of Order 33 Rule 5(a) of the Code. It was held in _**Dr. D. Hemachandra**_ ## _**Sagar and another v. D. Prithviraj and another**_ (2004 KHC 3808), that in an application to sue as an indigent person, in cases where the defendants have evidence, they can certainly produce it; but it is not O.P.(C) No.346/2013 -12- their duty to disprove the case of the applicants. It is very necessary to record that the scheme of law is to the effect that two basic ingredients are predominant, the first being that it is a condition precedent for the plaintiff-applicant to make a full and true disclosure of all their assets and resources. Where this is not done or where it is evident to the court that the disclosures are untrue or unreliable or incorrect which boils down to the inference that they are half truths or totally false, the application will have to be dismissed on this ground alone. 19. Therefore, I find that the court below has not considered the evidence brought before the court regarding the indigency of the appellant. I am constrained to interfere with the order passed by the court blow and the same is hereby set aside. The court below has allowed the petition without considering the facts as mentioned above and the same is liable to be set aside. The respondent is directed to pay the court fee within one month from the date of receipt of a copy of this judgment and proceed with the case. Accordingly, this Original Petition is allowed. sd/- **ANNIE JOHN, JUDGE.** _RKM,Rv_ O.P.(C) No.346/2013 -13- ## **APPENDIX** ## PETITIONER'S EXHIBITS: EXT.P1: COPY OF PETITION FILED BY THE RESPONDENT IN POP NO.33/2006 BEFORE THE SUB COURT, THRISSUR. EXT.P2: COPY OF COUNTER FILED BY THE PETITIONER BEFORE THE SUB COURT, THRISSUR. EXT.P3: COPY OF AFFIDAVIT IN POP NO.33/2006 BEFORE SUB COURT, THRISSUR. EXT.P4: COPY OF DEPOSITION OF THE RESPONDENT WITNESS. EXT.P4(a): COPY OF DEPOSITION OF THE RESPONDENT WITNESS. EXT.P4(b): COPY OF DEPOSITION OF THE RESPONDENT WITNESS. EXT.P4(c):COPY OF DEPOSITION OF THE RESPONDENT WITNESS. EXT.P5: COPY OF STATEMENT OF ACCOUNT OF THE RESPONDENT. EXT.P5(a):COPY OF STATEMENT OF ACCOUNT OF THE RESPONDENT. EXT.P5(b):COPY OF STATEMENT OF ACCOUNT OF THE RESPONDENT. EXT.P6: COPY OF PETITION FILED BY THE RESPONDENT. EXT.P7: COPY OF DEPOSITION OF THE PETITIONER WITNESS. EXT.P8: COPY OF ORDER OF THE 1ST ADDITIONAL SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS: NIL /True Copy/ PS to Judge. rv O.P.(C) No.346/2013 -14-