Sau. Chandrabhaga Vyankatrao Sugandhi v. The State of Maharashtra & Ors.

Order

1. The present petitioner had filed a Suit for declaration that the petitioner is the owner of the suit properties and with further declaration and relief. The petitioner also filed Misc. Application No. 8 of 2006 for declaring the petitioner as an indigent person. After recording the

evidence and hearing the parties, the said application was rejected. The petitioner challenged the said Order by filing M.A. No. 69 of 2008 before the District Court, Aurangabad. The District Court also dismissed the said 2 W.P. 10964.2010 Misc. Civil Appeal. The petitioner has assailed the said judgment in the present Writ Petition.

2. Mr. Barde, learned counsel for the petitioner strenuously contends that the Courts have not properly appreciated the evidence on record and the provisions of Order XXXIII of the Code of Civil Procedure [ For short, ‘ the Code ’ ] in its correct perspective. The learned counsel contends that in a Suit, the petitioner required to pay court fees of ` 1,47,500/- [ Rupees One Lac Forty Seven Thousand Five Hundred only ]. The petitioner does not possess such huge amount nor is having sufficient means to pay the amount of court fees. The Courts have given more stress on the non disclosure of market value. In fact, law requires estimated value of the property. The property does not have any value, but is only a shelter to the petitioner.

3. The learned counsel further contends that both the Courts have failed to consider that the property situated in S.No. 5568 is a two storied building in occupation of tenants, who are paying monthly rent of ` 33/- [ Rupees Thirty three only ] per month and the litigation is in process. Another property bearing S.No. 5627 is the residential property of the petitioner and is surrounded by the business of prostitution and has no market value. The Court has not considered this aspect. The Court 3 W.P. 10964.2010 also ought to have considered that the telephone facility is dis-connected in the year 1989. The electricity facility enjoyed by the petitioner is restricted to two ( 2 ) bulbs and the electricity bill is not more than ` 100/- to 120/- per month. The learned counsel contends that the provisions of Order XXXIII Rule 1- A of the Code have not been complied and the orders have been vitiated.

4. The learned counsel submits that mere availability of means is not a condition. It should be “ sufficient means ”. The petitioner and her husband have crossed the age of 80 years. They are physically handi- caped. They do not have any source of income. The business run by the petitioner’s husband is closed way back. The son and daughter-in-law do not maintain the petitioner and her husband. All these aspects have not been considered by the Court. Even the Tempo or Rickshaw would not fetch the amount of court fees as the same is inoperative and has zero value. The learned counsel relies on the Judgment of the learned Single Judge of the Allahabad High Court in the case of Kundan Lal V/s Surendra Nath and others reported in AIR 1980 Allahabad – 205 and submits that even the defects can be cured and the Court has jurisdiction to permit the applicant to rectify the defect.

5. Mrs. Kulkarni and Mr. Gaware, learned counsel for the 4 W.P. 10964.2010 respondents support the order and submit that the petitioner has “ sufficient means ”. The petitioner has suppressed the fact and has failed to give market value of the properties. The market value of the property held by the petitioner is more than ` 30,00,000/- [ Rupees Thirty Lacs only ]. Even the son of the petitioner is doing the business. The said fact is also suppressed. The equitable relief can not be granted in favour of the petitioner. No attempt is made to realize the amount of court fees.

6. The learned counsel for the respondents rely on the Judgment delivered by the learned Single Judge of the Punjab and Haryana High Court in the case of Sanyukta V/s Prem Kumar Madan and others reported in AIR 1974 Punjab and Haryana – 203, so also the Judgment of the learned Single Judge of the Andhra Pradesh High Court in the case Sri Ramalingeswaraswamy Baru Temple V/s Ravuru Seetharamaiah reported in AIR 1967 Andhra Pradesh – 46 to submit that sellable interest has to be taken into consideration.

7. The learned counsel submit that when there are suppression of facts, the petitioner is not entitled for the relief. For the said purpose, the learned counsel rely on the Judgment of the learned Single Judge of this Court in the case of Venkatesh Iyer V/s Bombay Hospital Trust & Ors. Reported in 1998 ( 2 ) Bom. C.R. - 798. 5 W.P. 10964.2010

8. With the assistance of the learned counsel, I have gone through the orders passed by both the Courts and the application.

9. Order XXXIII Rule 1, 1-A and 2 of the Code reads as under : “ 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 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, 6 W.P. 10964.2010 shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III – Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. 1-A. Inquiry into the means of an indigent person - Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the Court, unless the Court otherwise directs and the Court may adopt the report of such Officer as its own finding or may itself make an inquiry into the question.

2. Contents of application - Every application for permission to sue as [ an indigent person ] shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings ” . 7 W.P. 10964.2010

10. From the perusal of Rule 1-A or Order XXXIII of the Code, it is manifest that an enquiry as to whether or not a person is an indigent person, at the first instance, is to be made by the Chief ministerial Officer of the Court, unless the Court otherwise directs or may itself make an enquiry into the question.

11. In view of the aforesaid provision, the arguments of Mr. Barde, learned counsel for the petitioner that first there has to be reported Chief ministerial Officer and then only the Court can consider the aspect, is not sustainable. The Court may itself make an enquiry into the question. In the present case, the parties have adduced the evidence and the Court has taken into consideration the evidence adduced before it.

12. Rule 2 of Order XXXIII of the Code lays down the particulars to be given in an application for permission to sue as an indigent person. The party making an application has to give the schedule of any movable or immovable property belonging to the applicant with the estimated value thereof. In the present case, though three ( 3 ) immovable properties are shown to be owned by the petitioner, the value of the said properties are not mentioned in the application. In the evidence adduced, it has come on record that the value of the said property is to the tune of ` 30,00,000/-[Rupees Thirty Lacs only ]. The petitioner has suppressed 8 W.P. 10964.2010 this fact in the application.

13. I am not inclined to accept the arguments of the learned counsel for the respondent that the application can not be considered as it is not properly verified. The same is an irregularity and would not be sufficient to reject the application on the said count.

14. This Court in its writ jurisdiction under Article 227 of the Constitution of India would not re-appreciate the whole evidence and would consider the same only if there is a perverse appreciation of evidence or erroneous application of law. The Courts on appreciation of evidence, have concurrently found that the properties owned by the applicant are worth ` 30,00,000/- [ Rupees Thirty Lacs only ] . Even the son of the petitioner is doing business, has been suppressed, so also the income generated by him. It has also come on record that the husband of the petitioner owns Tempo. The said fact is also not detailed in the application. Both the Courts have discussed all these aspects.

15. The petitioner has sellable interest in the properties owned by her, which are worth in multiple of Lacs. No attempt is made to realize the amount from the said property. The argument of the learned counsel for the petitioner that the property where the petitioner resides, is in such 9 W.P. 10964.2010 an area that it can not be sold, can not be accepted at this stage. No attempt is even made by the petitioner for the said purpose. It has also been observed that the petitioner holds telephone connection, so also electricity connection in her own residential house owned by her. She has property worth Lacs of rupees, which has been given to the tenants. All these aspects have been considered by the Court.

16. Both the Courts concurrently on appreciation of evidence has considered all these aspects.

17. In view of the above, the Courts have arrived at a plausible conclusion. No case for interference is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India.

18. The Writ Petition as such dismissed. No costs. KNP/W.P. 10964.2010 [ S.V. GANGAPURWALA,J. ]