Andhra HC (Pre-Telangana)
Sanjeevayya Nagar Co-Operative House ... vs S. Malla Reddy Alias Parvathalu And Ors. on 29 August, 2005
Equivalent citations: 2005(5)ALT745
JUDGMENT D.S.R. Varma, J.
1. Heard both sides.
2. Since both the appeals arise out of O.P. No. 138 of 2003 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad, they are heard together and are being disposed of by this common judgment.
3. The appellant and the respondents in both the appeals are the plaintiff and defendants in O.P. No. 138 of 2003 before the Court below.
4. For the sake of convenience, the parties will be referred to as 'the plaintiff' and 'the defendants', respectively.
5. C.M.A. No. 4791 of 2004 is directed against the order, dated 23-11 -2004, passed by the I Additional Chief Judge, City Civil Court, Secunderabad, in O.P. No. 138 of 2003. By that order, the Court below dismissed the petition filed by the plaintiff under Order 33 of the Code of Civil Procedure seeking to declare it as an 'indigent person' and permit it to file the suit 'in forma pauperis', and granted time to the petitioner till 10-12-2004 for payment of court-fee for registering the suit.
6. Since the plaintiff did not comply with the order, dated 23-11-2004, with regard to payment of court-fee, the Court below passed the following judgment' on 22-12-2004 in O.P. No. 138 of 2003 (in verbatim):
"Petitioner called absent. The counsel representing the petitioner requests for time. Since the matter is posted as last chance for payment of court fee and in spite of granting time from 10-12-2004 the petitioner has not paid the court fee nor got any order from the High Court. Since the petitioner made oral request for time to get the order from the High Court is not accepted. Hence, the petition is rejected."
7. Feeling aggrieved by the aforesaid judgment, dated 22-12-2004, plaintiff filed C.C.C.A. (SR) No. 2886 of 2005.
8. The plaintiff sought to file the suit against the defendants, in forma pauperis, for declaration of title and for recovery of possession of the plaint schedule property basing its claim on the registered sale deeds which disclose that the plaint schedule land was purchased by it for valid consideration and the defendants, who claim to be the tenants of the land in question, have been in possession of the same. It appears that earlier a suit O.S. No. 214 of 1982 had been filed by the plaintiff for recovery of possession, which was decreed, and the matter went upto to the Supreme Court and eventually, the present suit came to be filed for declaration of title and recovery of possession.
9. As stated supra, C.M.A. No. 4791 of 2004 is filed by the plaintiff aggrieved by the order, dated 23-11 -2004, passed by the Court below in O.P. No. 138 of 2003 rejecting permission sought for by it under Order 33 of the Code of Civil Procedure to file the suit in forma pauperis, whereas C.C.C.A. (SR) No. 2886 of 2005 is filed by the plaintiff aggrieved by the judgment of the Court below, dated 22-12-2004, dismissing the petition in O.P. No. 138 of 2003.
10. It is the contention of Mr. P.R. Prasad, learned Counsel appearing on behalf of the plaintiff, that in suits filed in forma pauperis by or on behalf of 'institutions', for the purpose of deciding whether the plaintiff has got sufficient means to pay the court-fee or not on the plaint, the means/capacity of the 'institution' alone shall have to be taken into consideration and the means of the individuals forming such institution/society shall not be taken into consideration. In effect, his submission is that for the purpose of payment of court-fee, the capacity of the 'institution' alone has to be considered but not the capacity of the individuals forming part of such institution. In support of his contention, he relies on the judgment of a Division Bench of this Court in K.A.D. Ashramam v. Somasundaramma, 1966 ALT 3.
11. It is the contention of the learned Counsel appearing on behalf of the defendants that the Court below has given cogent and convincing reasons in passing the impugned order and hence the same does not call for any interference from this Court.
12. We have perused the impugned order and judgment, passed by the Court below.
13. From the impugned order and judgment, the Court below mainly rejected permission to the plaintiff to sue as an indigent person on the ground that it had earlier filed a suit O.S. No. 214 of 1982 for recovery of possession by paying the requisite court-fee, and now the plaintiff did not adduce any acceptable evidence to show that it did not possess necessary means to pay the court-fee in order to file the suit in forma pauperis. However, the Court below observed that the plaintiff could collect the amounts from its members for prosecuting the present litigation. For making such observation, the court below relied on the admission of P.W. 1, which was to the effect that the members of the plaintiff have contributed the amounts for prosecuting the earlier litigation in O.S. No. 214 of 1982. Therefore, the Court below observed that the members of the plaintiff-society are solvents at least to the extent of contributing the amount for the purpose of prosecuting the present litigation.
14. In order to decide the legality or otherwise of the aforesaid reasoning given by the court below, it is apposite to notice the provisions contained in Order 33 Rule 1 of the Code of Civil Procedure, which run thus:
"Order 33 Rule 1: Suits maybe 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, 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."
15. From the abovementioned Explanation-1, it is obvious that 'sufficient means' should be understood as means other than the property exempt from attachment in execution of a decree and the subject matter of the suit.
16. From the above perspective, if the present case is examined, it is to be noticed that the plaintiff is a society i.e., a body consisting of individuals, which has purchased some extent of land allegedly for their own benefit. When there was interference by the defendants, earlier it filed a suit O.S. No. 214 of 1982 for recovery of possession simpliciter, which had been decreed and as a sequel to the further orders, the present suit for declaration of title and recovery of possession came to be filed "in forma pauperis".
17. The subject matter of the suit obviously is nothing other than the suit schedule property said to be belonging to the plaintiff-Society. In other words, the subject matter of the suit now sought to be filed does not belong to any individual member or members of the plaintiff-society.
18. Even though, no proper accounts were furnished, as pointed out by the Court below, it cannot be said that the plaintiff has substantial means to pay the court-fee on the plaint. It may not be ignored that it is the vacant land that is in dispute, which does not or did not yield any material or substantial benefit in terms of money so far. According to the plaintiff, the property in question has been under litigation in one way or the other. Therefore, unless and until the subject matter of the suit is capable of yielding something to the members of the society or to the society as well, it cannot be said that the society has substantial means to meet the expenses to be incurred towards payment of court-fee on the plaint.
19. To put it in a different way, in case the plaintiff-society succeeds in the suit, its functioning might become viable and then only it may be able to pay the court-fee in the suit.
20. It is to be further noticed that Explanation II of Order 33 Rule 1 of the Code of Civil Procedure makes it further clear that if any property had been acquired by the plaintiff during the pendency of the suit, and if the plaintiff is capable of meeting the expenses towards payment of court-fee, the same can be brought to the notice of the Court below and in such an event the Court can pass appropriate orders and decide again as to whether the plaintiff was an indigent person or not.
21. From the above, it is obvious that the status of the plaintiff as regards its means/capacity to pay court-fee need not necessarily be static althrough the pendency of the proceedings. It may get varied or modified, subject to various contingencies during the course of litigation, at any point of time. That way there would not be any apparent prejudice to the revenue to the State.
22. When important questions are involved in the suits, we are of the view that the Courts are required to adopt liberal approach in granting permission to file the suits in forma pauperis, more so, depending upon the facts and circumstances of a given case. However, we may clarify that 'liberal approach' shall not be construed as an unqualified one in all cases - i.e., just for mere asking, permission to sue as an indigent person cannot be granted in a routine manner-- but, the totality of the overall facts and circumstances of a given case shall have to be taken into consideration while arriving at any conclusion in this regard.
23. In K.A.D. Ashramam v. Somasundaramma (1 supra), relied upon by the learned Counsel appearing on behalf of the plaintiff, a Division Bench of this Court, following the decision of a single Judge of this Court in Subba Rao v. Satyanarayana , observed that it is not the means of the individual petitioners (devotees therein) but the means possessed by the institution (temple therein) that will determine the question of pauperism of the plaintiff.
24. Reverting back to the case on hand, it is required to be noticed that it is the plaintiff-society that has filed the suit but not any individual and the subject-matter is not the property of any individual but the property of a body of individuals of a society. Therefore, having regard to the facts and circumstances involved in the case on hand, we feel it appropriate to allow the plaintiff to prosecute the suit as an 'indigent person', however, subject to the qualifications attached to Order 33 Rule 1 of the Code of Civil Procedure.
25. In the result, the appeal C.M.A. No. 4791 of 2004, preferred against the order in OP. No. 138 of 2003, is allowed and consequently the appeal C.C.C.A. (SR) No. 2886 of 2005, preferred against the judgment in OP. No. 138 of 2003, is also allowed, at the stage of admission. However, there shall be no order as to costs.
26. The interim applications, if any, pending in both the appeals are hereby closed.