(2012) 237 KLR 374

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE V.RAMKUMAR & THE HONOURABLE MR.JUSTICE K.HARILAL 

WEDNESDAY, THE 22ND DAY OF FEBRUARY 2012/3RD PHALGUNA 1933 

FAO.No. 151 of 2011 ( ) 

----------------------- 

POP.6/2010 of PRINCIPAL SUB COURT,PARAVUR 

APPELLANT/APPELLANT/PETITIONER: 

--------------------------------- 

PAULOSE @ PAULO, S/O.DEVASSY, KANJUKKARAN VEETTIL, MOOKKANNUR P.O., ANGAMALY (VIA) ERNAKULAM DISTRICT, PIN: 683 577. 

BY ADVS.SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.GEORGE JOSEPH PULIMOOTTIL SRI.K.DILIP SRI.ROVIN RODRIGUES 

RESPONDENT(S)/RESPONDENTS: 

-------------------------- 

1. ELIAS K.VARGHESE, S/O.VARGHESE, KAVALACKAL VEETTIL, KALLUPALAM NAGAR, ANGAMALY P.O. ERNAKULAM DISTRICT, PIN: 683 572. 2. THE SENIOR MANAGER, PUNJAB NATIONAL BANK, ANGAMALY BRANCH, ANGAMALY ERNAKULAM DISTRICT, PIN: 683 572. R, 

BY SRI.C.P.WILSON R, BY SMT.ROSE MICHAEL R,R1 BY SRI.J.S.AJITHKUMAR 

THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 

CR 

V.RAMKUMAR & K.HARILAL, JJ 

------------------------------------------------- 

F.A.O No.151 of 2011 

-------------------------------------------------- 

Dated this the 22nd day of February, 2012 

Head Note:-

Civil Procedure Code, 1908 - Order 33 Rules 1, 5 and 7 - Order 43 Rule 1(a)   - "sufficient means".

Held:- The Code uses the expression 'sufficient means', i.e. "means" sufficient to pay court fee after meeting the basic requirements of life. Total destitution is no prerequisite to seek justice. If he does not have sufficient means to pay court fee, justice shall not be denied to him. The benefit is conferred on persons without 'sufficient means' and not without any means at all. Pauperism is not a pre-requisite for leave to sue as an indigent person. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property which the court has to look into. Possession of 'sufficient means' refers to possession of sufficient realisable property which will enable the plaintiff to pay the court fee. Possession of hard cash sufficient enough to pay the court fee is not a pre- requisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay the court fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. Eventhough sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of 'sufficient means' should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that is yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court fee cannot be taken into account in calculating sufficient means. The words used are "possessed of sufficient means" which means that what was not possessed at the time of suit cannot be taken into account.

J U D G M E N T 

V.Ramkumar, J 

In this appeal filed under Order 43 Rule 1(na) of the Code of Civil Procedure, the appellant who was the petitioner in P.O.P No.6/2010 on the file of the Sub Court, North Paravur challenges the order dtd.3.1.2011 passed by the Court below dismissing his application to institute the suit as an indigent person. In the proposed suit he is seeking a declaration that the assignment deed purported to be executed by him in favour of defendant No.1 with respect to A schedule property admeasuring 9 = cents of immovable property is a nullity. According to the appellant he is a coolie worker and he merely offered his property as a security to oblige the 1st defendant, a builder to avail a loan from the 2nd defendant and it was only later that he discovered that a fraud had been practiced on him by the 1st defendant by getting an assignment deed executed by the appellant. The plea is one of non est factum. There is no dispute that the total extent of the property possessed by the petitioner is only 11 cents of which 9 = cents was the subject matter of the impugned assignment deed. What remains is only 1 = cents of land and not 6 cents as was wrongly assumed by the court below. The property is in Mookannur Village of Aluva Taluk. 

2. During the enquiry under Order 33 Rules 5 and 7, the court below observed that the appellant was colluding with the 1st defendant and the 1 = cents of land (wrongly shown as 6 cents) which was the balance extent after excluding the property covered by the assignment deed could be sold and the means to pay the court fee could be found. 

3. There is no dispute that the court fee payable is Rs. 4,11,020/- (Rupees four lakhs eleven thousand and twenty only). By virtue of clause (a) to Explanation I to Order XXXIII Rule 1 CPC, the subject matter of the suit and property exempt from attachment in execution of a decree, are to be excluded while considering the question as to whether the applicant is possessed of sufficient means. If so, the property which can be considered to have retained by him is only 1 = cents and not 6 cents as was wrongly assumed by the court below. The question then is whether the appellant who is in possession of 1 = cents of land could be said to be possessed of sufficient means to pay the court fees of Rs.4,11,020/-. The mere fact that the applicant in a petition for leave to sue in forma pauperis is stated to have some interest in immovable property by itself, should not be taken to mean that he has the means to pay the prescribed court fee. The real test is whether the petitioner is in a position, in the ordinary course, to convert his possession into liquid cash without undue hardship and delay and pay the requisite court fee (see Kamalamma V. Karthiayani (1972 KLT 783). The law does not expect him to make a distress sale of his only property and pay the court fee and thereafter live in penury or abject poverty. Courts have to construe the provisions with a pragmatic insight and without sacrificing the social justice element and the constitutional ethos behind the sublime process of administration of justice. 

4. An indigent person need not be one bereft of all material possessions of value. The Code confers the benefit on persons without 'sufficient means'. It refers not, to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain whether he is capable of raising the court fee in normal circumstances. The Code uses the expression 'sufficient means', i.e. "means" sufficient to pay court fee after meeting the basic requirements of life. Total destitution is no prerequisite to seek justice. If he does not have sufficient means to pay court fee, justice shall not be denied to him. A person who has no possession, save his residential house, and who is over 70 years of age with no prospect of earning capacity, is a person without means to pay the requisite court fee. (Vide Xavier V. Kuriakose (1987 (1) KLT 176). 

5. The benefit is conferred on persons without 'sufficient means' and not without any means at all. Pauperism is not a pre-requisite for leave to sue as an indigent person. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property which the court has to look into. Possession of 'sufficient means' refers to possession of sufficient realisable property which will enable the plaintiff to pay the court fee. Possession of hard cash sufficient enough to pay the court fee is not a pre- requisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay the court fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. Eventhough sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of 'sufficient means' should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that is yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court fee cannot be taken into account in calculating sufficient means. The words used are "possessed of sufficient means" which means that what was not possessed at the time of suit cannot be taken into account. (Vide Prabhakaran Nair V. Neelakantan Pillai (1987(2) KLT 376) 

6. Applying the ratio in the aforesaid decisions we have little doubt that the court below was not justified in dismissing the application for the reason that the petitioner could have mobilised funds by selling 6 cents of land (wrongly shown as 6 cents instead of 1 = cents) possessed by him. The order of the court below is set aside and P.O.P No.6/2010 will stand allowed. The petitioner will be entitled to prosecute the suit as an indigent person. In the result, this appeal is allowed as above. 

Sd/- V.RAMKUMAR, JUDGE 

Sd/-K.HARILAL, JUDGE 

ab /true copy/ P.A. to Judge