Jammu & Kashmir High Court
Dilshada Bano vs Gh. Nabi on 29 July, 1987
Equivalent citations: AIR1988J&K55, AIR 1988 JAMMU AND KASHMIR 55
ORDER G.A. Kuchhai, J.
1. This application under Order 33. C.P.C. is by the applicant against the respondent her husband to sue in forma pauperis for recovery of property and money mentioned in the application.
2. The applicant, has pleaded being wedded wife of the respondent, who has turned her out for not satisfying his demand for additional dowry. She having no sufficient means to defer the expenses of Court-fees on her claim of Rs. 1,54,874/- having to feed her children in the house of her parents and having no means therefore, seeking declaration to sue as an indigent person, the applicant has filed schedule of the property along with the application supported by an affidavit.
3. The respondent ultimately appeared and filed his objections to the application for declaring the applicant as an indigent person objecting to the maintainability of the application, same being not in accordance with law and the applicant being a Govt. servant receiving a salary of Rs. 1000/- having G. P. Fund, Insurance and capacity to pay the requisite Court-fee. That the applicant has suppressed the true facts in the application and her claim is based on incorrect facts. Further the application and list have not been properly verified, therefore, the application be dismissed.
4. In addition to certificate received from the Collector, regarding pauperism of the applicant, she has examined three witnesses namely Dr. Farooq, Hissamuddin and Assad Ullah besides her own statement.
5. The non-applicant/respondent on the other side has not produced any evidence nor examined himself.
6. I have heard learned counsel for both the parties.
7. The only question to be seen is at this stage, whether the applicant can be declared an indigent person and allowed to file a suit against the respondent as an indigent person? For this purpose, we have to refer to Rule 1(a) of Order 33, C.P.C. before the material is discussed. Rule 1(a) which applies to this case provides that a person is an indigent person if he is not possessed of any sufficient means other than the property exempt from attachment in execution of decree and subject matter of suit to enable him to pay the fee prescribed by law for the plaint in such suit. In this case, the applicant has claimed recovery of property including money valued at Rs. 1,54,874/- and for this claim, court-fee is specifically fixed. A certificate in this case is received endorsed by the Collector in the following words : --
"........I have inspected the spot. The applicant is working as teacher in Education Department. From her salary she has to feed two minor children and arrangement for her debits which she has accrued during her marriage for dowry. She has no other source of income. Neither has any land, house or shop of his own. The applicant is pauper.
Sd/-
Naib Tehsildar Srinagar 9/7'"
8. This shows that the applicant has neither any property nor source of income. This certificate, however, will be appreciated in the light of oral evidence brought on record by the applicant.
9. Sub-rule (a) of Rule 1 of Order 33. C.P.C. excludes possession of property for purposes of declaring a person indigent person which is not to be attached in execution of a decree. To appreciate the point regarding elimination of attachment of property in this case we are concerned only with regard to the property referred in Section 60, C.P.C. wherein in Rule 3(h), sub-clause 2nd, the limit of salary not attachable is to the extent of Rs. 400/- as inserted by Amendment Act XI of 1983. The applicant is not proved by any evidence of the respondent or on certificate of the Revenue Authorities possessing any immovable property attachable or non-attachable bearing any income but as in her statement before this Court, she has admitted receiving a total salary of Rs. 991/- as a Govt. teacher per month. According to the statement of the applicant her emoluments, as a teacher are Rs. 991/- per month after standard deduction of insurance, GP Fund, she is receiving Rs. 771/- monthly. The applicant under law in accordance with Section 60 of C.P.C. gets exemption of non-attachable property to the extent of Rs. 400/- from her regular source of income, rest of the amount received by the applicant is not exempt under law from attachment, therefore, the applicant has a choice to spend the amount in accordance with priority of liabilities.
10. Mr. Hagroo, appearing for the applicant referred to her statement where she has given account of her expenditure and sources tapped by her to incur the same in order to maintain herself to give education to her children and to meet their expenses. Whatever the applicant says regarding expenditure, it is not rebutted by the respondent. But referring to the statement of Dr. Farooq PW who is the brother of the applicant, (and) has stated that in addition to the emoluments the applicant has a Court order of Rs. 500/- having been awarded as maintenance for the children of the applicant. Further the applicant is deducting Rs. 100/- towards her GP Fund account and she has been in service for 7-8 years, which fact is confirmed by the applicant herself. From the witnesses examined including the statement of the applicant, the fact becomes quite clear that the applicant has personal monthly income of Rs. 991/- pay as a Govt. teacher. Regarding the expenditure on her children, according to her own admission and statement of Dr. Farooq, she has been awarded Rs. 500/-for the maintenance of the children out of the wedlock. As regards the amount of maintenance for children, this cannot be treated personal income of the applicant, but this amount is clearly adjustable towards the expenditure incurred by the applicant regarding education and up-keep of the children leaving the salary received by the applicant as a net source of income to her.
11. The applicant has been subscribing towards her GP Fund for the last 7-8 years at the rate of Rs. 100/- per month, which shows that she is in a position to save though the deduction is compulsory but a Govt. servant under the GP Fund rules is at liberty to draw the amount from accumulated GP Fund amount for exigencies of life may be marriage of children, repair of house, medical treatment and is not barred to meet even the legal liabilities such as to pay stamps and Court-fee charges for any claim, from the G. P. Fund the Govt. servant puts before the Court for redressal. The applicant of her own admission has exposed her standard saving towards G. P. Fund, Account to which she has no bar to withdraw to meet the expenses of court-fee. In this view of the matter it cannot be said that the applicant lacks source of income as has been summarily certified by the Collector without proper enquiry to give the detail that the applicant is an earning hand. In the circumstances, the applicant is possessed of attachable property of salary at least to the extent of Rs. 591/- even if we exclude Rs. 400/- per month not attachable under law, which the applicant can incur towards livelihood. While at this stage entire amount of salary except deduction of G. P. Fund and insurance she is possessing property in the shape of salary as Teacher. In order to meet the expenses of her children, Rs. 500/- have been awarded by the Court for the same which the applicant has not denied not having received. In the circumstances it will be difficult to observe that the applicant is short of source of income to pay court-fee as the plea has been defeated by her own admission while under examination before this Court.
12. Looking to the objection raised by the non-applicant, it is to be seen, whether the application of the applicant is to be rejected and not to declare her indigent person. Regarding rejection of the application, Order 33, Rule 5, C.P.C. provides that the application for permission to sue as indigent person can be rejected as specified in grounds (a) to (g) and for the purposes of this case, grounds (a) and (b) as per objection of the respondent have to be considered.
13. Ground (a) refers Rules 2 and 3 of Order 33, Rule 2 of Order 33, C.P.C. lays that every application for permission to sue as an indigent person shall contain the particulars required in regard to plaint in suits. Further a schedule of movable or immovable property belonging to the applicant with estimated value shall be annexed and shall be verified in the same manner specified for signing of plaints. While Rule 3 provides that application to sue as an indigent person shall be presented in person unless exempted from appearing in Court. As regards Rule 3, no objection has been raised by the respondent. It is only with regard to the Rule 2, the counsel for the respondent has drawn attention of this Court. The applicant in this case has not verified the application in the manner provided for a plaint in accordance with Order 6, Rule 15, C.P.C. I may mention here that there may be defect in the verification of the application for permission to sue as forma pauperis in reference to paragraphs, date and place of signing, which is my opinion consistently held by this Court is not a fatal to reject the application as the applicant can be permitted, to fill the lacunae within the specified period. Therefore, the objection on this ground at this stage, is not very material.
14. But, one thing which is very relevant and material for disposal of this application is that the applicant has suppressed the facts regarding her emoluments received as Govt. teacher in the schedule. Rule 2 of Order 33, C.P.C. provides that the applicant seeking permission to sue as an indigent person shall attach a schedule of movable and immovable property belonging to the person with estimated value signed and verified as applicable to the pleadings. I have already observed that there may be defect in verification but same is not fatal. The other aspect is, whether the Court can ignore or condone the concealing of source of income by the applicant in the schedule attached to the application. The frame of the suit is basically entertained on the list of property in schedule attached to the application. While filing the schedule the applicant is expected not only to be honest in declaration of assets but truthful as he is seeking declaration from the Court that he is possessed of no means to pay the court-fee, which otherwise is a legal obligation and kept only an exception for a person seeking such declaration. The schedule of the property attached to the application supported by affidavit mentions property worth Rs. 125/- only at serial 1 to4. The application together with the schedule has been presented as per the date of the presentation on 17-9-84, that means much after the applicant has admitted being in service. Therefore, it was incumbent upon the applicant to disclose the income of pay from the Govt. as teacher, what she has not done nor having explained why this information in schedule has been omitted to be brought on record A person posing a pauper has to make a bona fide approach to the Court, while filing the application together with the schedule of property, because the law has kept a concession for an indigent person not to pay court-fee for want of source of income otherwise every person who comes to the Court with a claim to obtain a decree he/she is bound to pay court-fee and stamps unless exempted under same or under law. The applicant in this case had daringly concealed her source of income as a teacher which attempt cannot be taken a bona fide attempt without explanation not tendered because the income received by the petitioner is much prior to this application, otherwise the applicant could be given benefit that such income was received by her after she filed the application, still she was bound to make disclosure during the pendency of the application, what has not been done. The applicant was bound to make complete and total disclosure of the facts regarding her assets indicating pay she is receiving. Even if the property now disclosed in the shape of pay was not sufficient to defer the expenses of court-fee. The schedule is meant to disclose all the assets leaving no room for doubt. The person seeking a declaration to sue as an indigent person is not only expected, but bound to make true disclosure of assets, once this is not done it is major legal defect having bearing on the application. Thus, nondisclosure of the pay received by the petitioner as teacher, is fatal to the application. The attempt to conceal the income is neither bona fide nor due to inadvertency. For non compliance of filing a true statement of f acts, regarding the source of income or true details of the assets in accordance with Rule 2 of Order 33, C.P.C. cannot be overlooked and in my opinion is sufficient ground to reject the application. I am supported in my view by AIR 1977 Andh Pra 15, "N. N. Raju v. R. C. Appanna" wherein it has been held : --
"Every applicant should approach the Court for leave to sue as a pauper with a full and complete disclosure of his movable and immovable property assets. If, he does not do it, the application is liable to be dismissed. The motive for such non-disclosure is immaterial. Even if the undisclosed property is not sufficient to pay the court-fee it does not alter the situation."
To the same effect is AIR 1972 Raj 311 wherein it has been observed in the following words : --
"Where the petitioner is not frank and true in the matter of pointing out the assets, his petition to sue as forma pauperis is liable to be dismissed. Of course, if the omission is inadvertent or bona fide he may be allowed to amend his petition. Case law referred."
15. Mr. Hagroo, for the petitioner on the other hand referred to AIR 1976 Andh Pra 85 "M. Abdul Sattar v. H. A. Hakeem" and AIR 1957 All 680, "Fakru Din v. Iqbal Ahmad". While going through these citations, I find that they have no relevance to this case and are distinguishable on touchstone of facts involved in this application.
16. For the reasons given, the application to sue in forma pauperis by the applicant deserves to be rejected for non-compliance of provisions of Rule 2, Order 33, C.P.C. for want of filing the true statement of property possessed by the applicant together with observations that the applicant receiving regularly emoluments not exempt from attachment, as observed above, she cannot be said an indigent person possessed of no property as required under law.
17. The result is that the application for declaring the applicant to sue as an indigent person is rejected and the applicant is permitted to affix the requisite court-fee on the application/plaint within a period of four weeks.
18. List after four weeks for orders.