Palakkil PuthiyaMaliyekkal Abdul Razak v. P.K. Saleem

**'CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ## THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940 CMCP.No. 19 of 2018 OS 715/2011 of III ADDL.SUB COURT, KOZHIKODE DATED 29-11-2017 ## PETITIONER/S: PALAKKIL PUTHIYAMALIYEKKAL ABDUL RAZAK AGED 56 YEARS, S/O. V.V. ABDULLAKOYA, NAGARAM, KOZHIKODE. BY ADVS. SRI.E.NARAYANAN SRI.T.KRISHNANUNNI (SR.) ## RESPONDENT/S: P.K. SALEEM S/O. SHAMSUDHIN, "BYTHULMUNA", AGED 54 YEARS, KALLAI P.O., PANNIYANKARA, KOZHIKODE - 673 002. BY ADVS. SRI.K.SANEESH KUMAR SMT.V.B.SANTHINI SMT. REHANA, GOVERNMENT PLEADER THIS CIVIL MISC. CASE(PAUPER) HAVING BEEN FINALLY HEARD ON 09.08.2018, THE COURT ON 10.10.2018 PASSED THE FOLLOWING: C.M.C.P No. 19/2018 -2- ## **ORDER** ## K. Harilal,J. This petition has been filed to permit the petitioner to prosecute the accompanying Regular First Appeal as as indigent person. The petitioner is the defendant in O.S. No. 715 of 2011 on the file of the Sub Court, Kozhikode. The suit was filed for the specific performance of a contract. 2. The learned counsel for the petitioner contended that the court below, on an erroneous application of facts, law and evidence to the case, decreed the suit by ordering specific performance. Now the respondent has filed an application for executing the decree. The specific case of the petitioner is that he has not received any such amount from the respondent as alleged in the plaint. He has also submitted that if the application is proceeded with, he will be put to irreparable loss and prejudice. The total jurisdiction value shown in the court below is Rs.45,00,500/- and the court fee paid thereon was Rs.3,78,440/-. As per Section 52 of the Kerala Court Fees and Suits Valuation Act, he has to pay the same court fee that was paid in the court below in the above appeal also. He has further submitted that he has no sufficient means to pay the required court fee to prosecute the C.M.C.P No. 19/2018 -3- appeal. He has argued that he has not sold any property within two months and he has not entered into an agreement with any person to finance the litigation. The movable and immovable properties of him are scheduled in the petition. 3. The respondent has filed a counter affidavit stating that the petitioner has approached this Court with _mala fides_ and his attempt is to mislead this Court. The petitioner earlier approached this Court by filing R.F.A. No. 179 of 2016 in respect of the very same subject matter by remitting the entire court fee and the same got returned since the matter was remanded to the trial court for re-consideration and this fact has been wilfully suppressed in the affidavit. The petitioner is holding immovable properties to the tune of Rs.75,00,000/-approximately. Further he is running a hotel business which derives huge profit. The petitioner has suppressed the records, including the business accounts and statement of accounts from this Court. In fact the petitioner is holding Rs.30,00,000/-, which was accepted as advance sale consideration. The filing of the above appeal is only a futile exercise which is being done by the petitioner and it cannot be shouldered at the cost of the State. It is also to be noted that the petitioner is paying Rs.7500/- per month as rent. It is also stated that the report filed by the State is not conclusive in the absence of a valid enquiry and details C.M.C.P No. 19/2018 -4- with regard to the financial status of the petitioner. It is further stated that the petitioner has wilfully suppressed the material facts from this Court and therefore, he prays for the dismissal of the petition with exemplary costs. 4. The petitioner has filed a reply affidavit denying the allegations in the counter affidavit and stating that he is unable to raise funds for depositing the court fees and therefore, he may be permitted to sue the appeal as an indigent person. In the affidavit, he admitted the fact that he had earlier approached this Court by filing RFA No. 179 of 2016 by paying the full court fee and while remanding the case, the court fee was returned to him. But the same was used for renovating his hotel business and to repay his loans. Since the business is a small one, he is not keeping any accounts with respect to the same. The hotel which is being run by him in the building constructed in the property mentioned in item No.2 in the District Collector's report is a small one and the income from the said hotel business is the only source of his livelihood. After paying the rent of Rs.7500/-, he is not having any benefits from the said hotel business and he has no other assets to raise the fund to pay the court fee. He has further averred in the affidavit that he has not sold any property within two months and he has not entered into any agreement with any person to finance the litigation. The movable and C.M.C.P No. 19/2018 -5- immovable properties belonged to him are also scheduled in the affidavit. 5. Heard the learned counsel on both sides. 6. The respondent has filed the suit for the specific performance of a contract. The appellant has taken a contention that he has not received any consideration as alleged by the respondent and the agreement was executed under undue influence and coercion. It is also contended that the court below, on an erroneous application of the law, facts and evidence in the case, decreed the suit by ordering specific performance. Aggrieved by the impugned judgment, the defendant has preferred the present RFA along with an application to proceed the appeal as an indigent person. 7. The respondent has filed a counter affidavit denying the averments in the affidavit filed by the petitioner. He has also averred that the total extent of the property wherein the hotel building is situated is only 1.69 cents and hence, he is not able to sell any part of the property so as to raise the fund for paying the court fees. Now the question that arises for consideration is whether the appellant is able to deposit the court fees or he is incapacitated in depositing the amount due to insufficient funds. 8. Order 44 Rule 1 of CPC provides for the institution of suits by C.M.C.P No. 19/2018 -6- ## an indigent person and it 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 person, in so far as those provisions are applicable." 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 as _in forma pauperis_ . Order 33 and Order 44 of CPC permit an indigent person to contest the case without paying the court fee at the initial stage. If the party succeeds in the suit, the court would calculate the amount of court fee which would have been paid by him, 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 decree to pay the same. If the suit is dismissed, then also the State would take steps to recover the court fee payable by him and the court fee shall have the first charge on the subject matter of the suit. So, the intention of the above provision is to help the poor litigants, who are unable to pay the requisite court fee to file a suit C.M.C.P No. 19/2018 -7- because of their poverty. So the main ingredients to be satisfied by a person who claim protection under Order 33 or Order 44 is to prove that he is not possessed of sufficient amount to enable him to pay the fees prescribed by the law for the plaint or in the appeal. 10. The burden of establishing indigency is on the person who claims indigent status, who must demonstrate not that he is entirely destitute and without funds, but that payment for counsel would place an undue hardship on his liability to provide the basic necessities of life for him or his family. 11. In the instant case, the petitioner has stated that he has no sufficient funds so as to pay the court fee as prescribed by law. But in the reply affidavit, he had admitted that he has earlier filed RFA No. 179 of 2016 by paying the full court fee. Since the matter was remanded to the court below, he has got the court fee refunded. He has also admitted that he is paying Rs.7,500/- as rent for the building, where his hotel business is running. He has not produced any bank account transaction details related to the hotel business to substantiate his contention that he is getting only a meagre amount Over and above, it was the case of the respondent that he has paid Rs.30,00,000/- as advance to the appellant at the time of entering into the contract. The respondent's contention is that the petitioner has suppressed the C.M.C.P No. 19/2018 -8- material facts from this Court and that ground itself is sufficient enough to disallow the prayer to permit him to sue as _in forma pauperies._ 12. In _**Mathai M. Paikeday v. C.K. Antony**_ (2011) KHC 4605, it is held that the factors such as person's employment status and the 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 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. The factors particularly relevant to the determination of whether a party to a civil proceedings 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 C.M.C.P No. 19/2018 -9- their combined financial assets may be warranted for the purpose of determining a party's indigency status in a civil proceedings. 13. It is also held in _**Pathumma v. K.S.E.B**_ [1997 (2) KLT 227] that 'the CPC 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, means sufficient to pay court fee after meeting the basic needs of life. The possession of 'sufficient means' in Order 33 Rule 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. 14. In effect, the provisions under Order 33 Rule 1 and Order 44 of CPC are intended to help the poor litigants who are unable to pay the requisite court fee to file a suit. In the instant case, the petitioner has admitted that he had received Rs.30,00,000/- as advance from the respondent. Over and above, he is runnnig a hotel business by paying Rs.7500/- as rent and he is having 1.65 cents of property, where the hotel building is situated. The affidavit as well as the reply affidavit reveals that the appellant has got sufficient means to pay the court fee. C.M.C.P No. 19/2018 -10- Earlier he has filed R.F.A. No. 179 of 2016 by paying the full court fee and he has got refunded the same on 29.03.2017 as the case was remanded to the court below. By suppressing the entire facts, the appellant has approached this Court to permit him to submit the appeal as _in forma pauperis_ . 15. It is 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. ## 16. It is 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 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 C.M.C.P No. 19/2018 -11- dismissed on this ground alone. 17. The petitioner herein did not disclose the entire facts before this Court. He could not be considered as pauper as he has failed to establish that he has insufficient funds in order to deposit the court fee and therefore, he is not entitled to get any relief as prayed for. In the result, this petition is dismissed. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** ## _Rv_ The name of the Judge who pronounced the order dated 10/10/2018 in C.M.C.P No. 19/2018 in Unnumbered R.F.A of 2018, shown below the word “Order” in the 1[st] page of the order is corrected as “ **Annie John** ” instead of “ **K. Harilal** ” under Section 152 of the C.P.C, as per order dated 06/12/2018 in C.M.C.P No. 19/2018 in Unnumbered R.F.A of 2018. sd/- **Registrar (Judicial)** C.M.C.P No. 19/2018 -12-