Poolakara Mary @ K.V.Mary v. V.V. Joseph and Puthiyarambath Jamshid

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940 CMCP.No. 6 of 2018 AGAINST THE JUDGMENT DATED 09.10.2014 IN OS 350/2012 of SUB COURT, SULTHAN BATHERY ## PETITIONER/APPELLANT/1ST DEFENDANT: POOLAKARA MARY @ K.V.MARY, W/O. NARAYANAN, AGED 47 YEARS, POOLAKKARA HOUSE, CHEERAL (PO), SULTHANBATHERY, WAYANAD DISTRICT. BY ADV. SMT.K.DEEPA (PAYYANUR) ## RESPONDENTS/PLAINTIFF/2ND DEFENDANT: 1 V.V. JOSEPH, S/O. VARGHESE, AGED 50 YEARS, VATTIYAMPALLIL HOUSE, AMBALAVAYAL AMSOM DESOM, NARIKUNDU (PO), WAYANAD DISTRICT, PIN: 673 593. 2 PUTHIYARAMBATH JAMSHID, S/O. IBRAHIM, AGED 32 YEARS, TP 16/499, THACHAMPOYIL, KOZHIKODE DISTRICT, PIN: 673 573. BY ADV. SRI.R.SURENDRAN THIS CIVIL MISC. CASE(PAUPER) HAVING BEEN FINALLY HEARD ON 05.12.2018, THE COURT ON 26.02.2019 PASSED THE FOLLOWING: CMCP No. 6 of 2018 -2- ## **ORDER** ## Annie John,J. The appellant is the defendant in O.S No. 350 of 2012 on the file of Sub Court, Sulthanbathery. Along with the appeal, the appellant has filed C.M.C.P No. 6 of 2018 to permit her to prosecute the appeal as _in forma pauperis_ . The appeal was preferred by the appellant against the judgment and decree dated 09.10.2014 in O.S. No. 350 of 2012 on the files of the Sub Court, Sulthan Bathery. The suit was filed by the first respondent for specific performance and in the alternative, for realisation of advance amount. The first respondent/plaintiff alleged that the plaint schedule item Nos.1 and 2 were owned and possessed by the petitioner/first defendant. On 03.06.2012, Ext.A1 agreement was entered into between the first respondent/plaintiff and it was agreed to sell the plaint schedule property to the plaintiff for a total sale consideration of Rs.60,50,000/-. The plaintiff paid Rs.60,00,000/-. The time fixed for performance of the agreement was till 30.12.2012. As per the agreement, the first defendant agreed to clear the debt due to KSFE, Sulthanbathery Branch and to get back the original title deeds and executed the sale deed in favour of the plaintiff on payment of balance consideration of Rs.50,000/- within the time stipulated in the agreement. The petitioner/first defendant filed a caveat petition before the Munsiff's Court and Sub Court, Sulthan Bathery. Then the first CMCP No. 6 of 2018 -3- respondent/plaintiff raised balance consideration and made arrangements with a document writer to prepare draft of sale deed and issued a lawyer notice to the first defendant expressing her willingness to perform his part of contract. The petitioner/first defendant sent a reply notice denying the sale agreement. Hence the suit was filed. 2. The learned counsel for the petitioner/first defendant contended that there was jewellery business transaction between the plaintiff and petitioner/first defendant in respect of the gold item purchased by the first defendant from from the shop of the first respondent/plaintiff. Towards that liability, the first respondent/plaintiff demanded sufficient security documents. Accordingly, Ext.A1 agreement was issued for the same. 3. The total valuation is Rs.69,47,233/- and the court fee fixed was Rs.5,66,200/-. According to the petitioner, she is unemployed and she is not in a position to do work as she is suffering from many diseases like cardiac diseases, acute diabetics, back pain, joint pain etc. It is submitted that the properties belongs to her are the properties shown in A and B schedules and the movables belonging to her as 'C' schedule. It is also submitted that the properties shown in A and B schedule is now under mortgage at Sulthanbathery Branch of Gokulam Chit Funds and KSFE respectively. Now, due to the default in payment, revenue recovery proceedings were initiated against her. According to her, there CMCP No. 6 of 2018 -4- is no income from the above properties so as to pay the required court fee. Further, she has reiterated that she has not disposed of any property two months before the presentation of this petition, nor has she entered into any agreement. It is further submitted that there is nobody to support her or finance her to sue the appeal and that she has not entered into any agreement with anyone to share the benefits or part with the benefits of the case. 4. The first respondent has filed a counter contending that the petitioner is not a pauper as contended by her. She has not shown all the properties in her ownership and possession at the time of filing of the appeal or making the application to file the appeal as indigent person. She deliberately suppressed the property having an extent of 20.24 Ares situated in Survey No. 892/8 and 9 of Cheeral Village in Sulthan Bathery Taluk of Wayanad District. She owned the said property along with her husband Narayanan. The petitioner and her husband Narayanan jointly sold the said property as per document No. 2486 of 2018 of SRO, Sulthan Bathery on 12.06.2018 for valuable consideration. That property would fetch more than Rs.25,00,000/-. A nominal value of Rs.1,25,000/- was shown in the said document for the purpose of saving stamp duty. It was further stated that the petitioner is a person capable of raising the necessary funds required for paying the court fee. According to him, even though the petitioner agreed to sell CMCP No. 6 of 2018 -5- the plaint schedule properties to her, she cleverly sold the item No.1 to the second defendant as per Ext.A7 on 27.08.2012 showing a price of Rs.4,71,000/-after discharging a liability of nearly Rs.18,00,000/- to the KSFE. The Second defendant while giving evidence through his Power of Attorney Holder--DW2, advanced a case that he purchased the property for Rs.30,00,000/-. But, now the very same property is shown in Schedule A as the property of the petitioner. It means that the petitioner received the said property back from the second defendant for a valuable consideration after the disposal of the suit. The statement of the petitioner that the Schedule A property has been mortgaged to Gokulam Chit Funds and the B schedule property to KSFE, indicates that the petitioner re-purchased the Schedule A property from the second respondent who was holding title as per Ext.A7 during the pendency of the suit. Therefore, the learned counsel for first respondent submits that the petitioner has deliberately suppressed many transactions for the sake of getting exemption from payment of court fee and the only intention behind the application is that in the event of dismissal of the appeal, the State would recover the court fee amount as first charge on the property. 5. The question which arises for consideration is whether the petitioner is having sufficient funds to pay the court fee fixed by the court. The learned Government Pleader has filed a memo producing the CMCP No. 6 of 2018 -6- report of the District Collector, Wayanad dated 6.9.2018, wherein it is reported that the petitioner has not transferred any of her property after 2017 and the property jointly possessed by the petitioner and her husband Sri. Narayanan was handed over on June, 2018. Thereafter, in pursuance to the order of this Court dated 04.10.2018 to clarify the same, the District Collector has filed an erratum to the earlier report. The said report is dated 10.10.2018 and it is stated that the petitioner does not possess any movable or immovable properties in the district individually. But, she and her husband Sri. Narayanan jointly possessed 0.2024 hectares of land in Survey Nos. 892/8 and 892/9 in T.P. 2171 of Cheeral Village in Sulthan Bathery Taluk. No land was sold within two months prior to 21.11.2017. The market value of the the abovementioned property is Rs.2,40,000/-; but the same was sold to Sri. Payyanirkarlath Afsal Ali for Rs.1,25,000/- on 12.07.2018 as per Document No.2486/2018 of Sub Registrar Office, Sulthan Bathery. She is running a tailoring shop in a rented building in the name of her husband and she earns Rs.36,000/- per annum. 6. In fact, this CMCP has been filed in the year 2015. Subsequent to the filing of the petition, a property jointly owned by the petitioner and her husband has been sold on 12.06.2018. This fact is borne out from the report filed by the District Collector. The petitioner has also filed a reply affidavit stating that she has already sold the property CMCP No. 6 of 2018 -7- jointly owned by herself and her husband in the year 2014 due to heavy financial stringency and at that time in February, 2014, she received advance of Rs.1,00,000/- from Sri. Payyanirkarlath Afsal Ali, who was employed in Gulf and since her husband could not able to refund the amount within the stipulated time, he was compelled to enter into an oral agreement with Sri. Afsal Ali to sell the above property to him. Accordingly, her husband received the balance consideration during December, 2014 itself. Since Sri. Afsal Ali was not in station, the sale deed could not be executed immediately thereafter and it was executed only on 12.06.2018 as per document No. 2486 of 2018 of SRO, Sulthanbathery. The statement that A schedule property was mortgaged to Gokulam Chit Funds and B schedule to KSFE, is borne out to be incorrect. In fact, she has sold the property belongs to herself and her husband subsequent to the filing of the CMCP. That would be sufficient to prove that she has sufficient funds in her hands even after the filing of the CMCP. The case was originated when the petitioner has accepted Rs.60,000,00/- from the respondent and decree was passed against the petitioner for realisation of Rs.60,000,00/- from her with future interest. So, she is having sufficient means i.e., Rs.60,000,00/- with her even at the time of filing of the suit against her. According to the respondent, she has paid Rs.18,000,00/- to the KSFE for clearing the liability and subsequent to that she sold the property to another person. CMCP No. 6 of 2018 -8- 7. The question to be considered is whether the petitioner is entitled to the benefit under Order 33 as well as 44 of the Code of Civil Procedure. Order 44 Rule 1 of CPC provides for the institution of suits by 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." 8. 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 CMCP No. 6 of 2018 -9- 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 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. 9. 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. 10. 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 CMCP No. 6 of 2018 -10- 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 their combined financial assets may be warranted for the purpose of determining a party's indigency status in a civil proceedings. 11. 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. 12. It is held in _**Mathew v. State of Kerala**_ (1996 (2) KLT 363) CMCP No. 6 of 2018 -11- 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. 13. 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 dismissed on this ground alone. 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 suppressed the material facts and she has not explained what she has done Rs.60,000,00/- obtained from the first respondent. Further, the statement that she has sold the property jointly owned by herself CMCP No. 6 of 2018 -12- and her husband in the year 2018, has not been mentioned by the petitioner. She has approached this Court with unclean hands and there is evidence to prove that she had sufficient funds in her hands to pay the court fees. If the petitioner is allowed to file this appeal as _in forma pauperis_ , no justice would be caused to the respondent except that the appellant will be allowed to contest the legality and validity of the decree passed by the trial court against her. Here, the appellant did not disclose the fact that she was having the sale consideration with her and she has not produced the documents before the court below at the time of filing of CMCP. The petitioner herein has failed to incorporate all these facts in her petition. She has not explained about the amount which was received from the respondent. Therefore, we are of the considered opinion that no permission can be granted to the petitioner to sue the case as _in forma pauperis_ . Therefore, the petition is only to be dismissed and we do so. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_ CMCP No. 6 of 2018 -13-