Madras High Court
)Malarkodi vs )Sakthivel on 16 February, 2015
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.02.2015 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A(MD)No.79 of 2013 and M.P(MD)No.1 of 2013 1)Malarkodi 2)Minor Karthika (Minor is represented by her mother and next friend Malarkodi (1st appellant) ... Appellants Vs. 1)Sakthivel 2)Pappayee ... Respondents Appeal filed under Order 43 Rule 1 of the Civil Procedure Code, against the fair order dated 07.01.2013 passed in Indigent O.P.No.1 of 2012 on the file of the District Court, Karur. !For Appellants : Mr.D.Nallathambi ^For R1 : Mr.M.Karthikeya Venkatachalapathy :JUDGMENT
The petitioner is the wife and she has a minor daughter aged 10 years. She filed a suit under Order 33 Rule 1 of the Civil Procedure Code, against her husband and mother-in-law claiming maintenance for herself and her minor daughter Karthika. The matter was taken up in Indigent O.P.No.1 of 2012 on the file of the District Court, Karur.
2.The case of the 1st appellant/wife was that the respondent/husband failed to maintain her and the minor child. Hence, they filed a suit claiming maintenance. They were not able to pay the court fee due to indigent circumstances. It was objected to by the 1st respondent/husband, on the ground that the 1st appellant was given 75 sovereigns of gold ornaments at the time of marriage, besides, she has share in the ancestral property.
3.The 1st appellant/wife examined herself as PW1 and marked Exs.P1 to P7. On the side of the respondents, the 1st respondent/husband examined himself as RW1, but he did not choose to mark any documentary evidence.
4.Upon evaluation of oral and documentary evidence, the learned District Judge, Karur, rejected the Indigent O.P.No.1 of 2012, on the ground that the 1st appellant has share in the properties mentioned in Ex.P7. It was also stated by the learned Judge that the wife has not denied the fact that at the time of marriage, she was given 75 sovereigns of gold ornaments. The following passage in paragraph 11 of the impugned order is extracted hereunder:-
?11)Whether the first petitioner voluntarily left the respondent or not and whether she is entitled to maintenance or not have to be decided only at the time of trial in the suit. In this petition, it has to be decided whether the petitioners have sufficient means to pay Court fees. As per the admission made by PW1, she claimed share in the properties mentioned in Ex.P7. She has not denied that at the time of marriage, she was given 75 sovereigns of gold ornaments. She has right over the properties involved in the suit under Ex.P7 which originally belonged to the mother's mother of the first petitioner. So, she can very well raise funds through the said properties. So, the contention of the petitioner that she has no means to pay Court fees for the suit filed by her is not hold good. Since the first petitioner is entitled to a share in the properties mentioned in Ex.P7, she is capable of paying Court fees. Under such circumstances, the claim of the petitioners that they have no means to pay Court fees is not sustainable. Hence, the petitioners cannot be declared as in forma pauperis and the claim of the petitioners is rejected and this point is answered accordingly.?
5.Learned counsel for the appellants has submitted that absolutely there is no evidence on the side of the 1st respondent that 75 sovereigns of gold ornaments were given to the 1st appellant at the time of marriage and the learned counsel appearing for the 1st respondent was not able to rebute the same. Therefore, the learned Judge is not correct in rejecting the indigent O.P.
6.I have perused the evidence of PW1. There was no suggestion made to PW1 at the time of cross-examination as to whether she was given of 75 sovereigns of gold ornaments at the time of marriage. Learned counsel for the 1st respondent has also fairly admitted that there is no evidence in that regard. Therefore, the only other ground that weighed with the learned Judge is that the 1st appellant has share in the property mentioned in Ex.P7. Ex.P7 is the plaint in O.S.No.25/2012. It is a partition suit filed by the 1st appellant along with her father and her brother claiming her share in the properties belonged to her grand-mother. Just because, she has share in the property and she claimed it by way of filing a suit, the same cannot be the reason to come to the conclusion that she is a person of having means to file a suit for maintenance against her husband. Therefore, I am of the view that the learned Judge is not correct in relying a copy of the plaint in O.S.No.25/2012 to reject the application filed by the appellants under Order 33 Rule 1.
7.The judgment of the Kerala High Court in A.Prabhakaran Nair vs. K.P.Neelakantan Pillai, reported in AIR 1988 KERALA 267, relied on by the learned counsel for the appellants would throw a light in these type of matters. Paragraphs 3 and 4 of the said judgment are extracted hereunder:-
?3. The benefit is conferred on persons without "sufficient means" and not without any means at all. Pauperism is not a prerequisite for the leave. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property alone is what 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 Court-fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. What is intended and provided is that justice shall not be denied to a person for the reason that he is not having sufficient means to pay Court-fee.
4. Even though sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. The interpretation must be to achieve the object behind the provision enabling the benefit to reach those for whom it is intended. What is intended is not capacity to raise funds by means whatsoever by begging, borrowing or stealing or by any other hook or crook, but by normal, and available lawful means. 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. This itself is the object of exclusion of property exempt from attachment in execution of a decree and the subject matter of the suit from 'sufficient means'.
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 has 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 approach must be practical and in a way to promote the cause of justice and at the same time cautious enough to plug mala fide avoidance of immediate payment of court-fee. 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.?
8.In Mathai M.Paikeday v C.K.Antony reported in 2011 (13) SCC 174, the Hon'ble Supreme Court has held as follows:-
?To sum up, the 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 fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court fee is not prescribed. In both the cases, 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 financial worth or ability of such indigent person. Moreover, the factors such as person's employment status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets, and person's total indebtness 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.?
9.Applying the said principle, I am of the view that the learned Judge is not correct in rejecting the application of the appellants filed under Order 33 Rule 1. Accordingly, the Civil Miscellaneous Appeal is allowed and the impugned order dated 07.01.2013 passed in Indigent O.P.No.1 of 2012 by the District Court, Karur, is set aside and the learned District Judge, Karur, is directed to declare the appellants as informa pauperis and number the suit as indigent person and proceed with the trial in accordance with law. Consequently, M.P(MD)No.1 of 2013 is closed. No costs.
NB2 16.02.2015
Index : Yes
Internet : Yes
Note : Registry is directed to send the records
to the District Court, Karur, forthwith.
To
District Judge,
Karur.
D.HARIPARANTHAMAN, J.
NB2
ORDER MADE IN
C.M.A(MD)No.79 of 2013
AND
M.P(MD)No.1 of 2013
DATED : 16.02.2015