The scope of enquiry by the court under Order 33, Rule 5(d) is very limited Merits of the claim made in the application, which has to be treated as the plaint in case leave is granted, could be gone into only by the court which may try the suit. This provision is inserted only for the purpose of avoiding misuses. The court at that stage cannot evaluate the contentions and go into the merit of the claim to decide that all or any of the claims will not stand.

KERALA HIGH COURT

SINGLE BENCH

( Before : S. Padmanabhan, J )

A. PRABHAKARAN NAIR — Appellant

Vs.

K.P. NEELAKANTAN PILLAI — Respondent

C.R.P. No. 2933 of 1986

Decided on : 25-06-1987

Civil Procedure Code, 1908 (CPC) – Order 33 Rule 1, Order 33 Rule 5, Order 33 Rule 6

Counsel for Appearing Parties

K.P. Dandapani, Sumathi Dandapani, K. Jaju Babu, C.A. Sreekantan and B.G. Harindranath, for the Appellant; M.C. Sen, for the Respondent

ORDER

S. Padmanabhan, J.—Leave to sue as an indigent person is sought to be revised by the respondent on three grounds (1) The applicant (Respondent here) is not an indigent person (2) The allegations do not show a cause of action and (3) No notice was given to the Government Pleader and his report not obtained and considered.

2. Art. 14 of the Constitution provides equality before law and equal protection of the laws. Directive principles of State Policy contained in Article 39A mandates the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity and provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. State is deriving revenue from Court-fee stamps and litigant has to pay the prescribed fee when filing the suit. There are many persons who are unable to have access to the legal institutions, due to inability by reason of their poverty to pay the enormous fee which alone could give them an entry. This is why provisions have been enacted in Order 33, C.P.C. exempting such persons from paying in the first instance, the fee prescribed and allowing them to prosecute their suits as indigent persons. That is a matter mainly between the State and the plaintiff though the opposite party is also having the right to get notice, contest the claim and adduce evidence. Court-fee is a matter essentially between the plaintiff and the state. That is the reason why notice to the Government Pleader is also provided under Rule 6. The object and purpose of the provisions is to see that resort to the temples of justice is not denied to anybody by reason of penury alone. When the indigent person succeeds the revenue to the state is secured, by R, 10 and to meet other contingencies also provisions are made in Rule 11 onwards. Anyhow the provisions are not intended to close the doors of Courts to poorer sections on technical grounds even though back door access by avoidance of Court-fee is intended to be prevented.

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.

5. What could be treated as asset of the respondent is 17 cents of land and a building. This was purchased by him under a Housing Loan Scheme from the Canara Bank in which he was an employee. Purchase was for Rs. 45,000/-. The property is hypothecated to the Bank to secure principal and interest and the documents are also with the Bank. More than Rs. 43,000/- is still due to the Bank and the respondent is evidently not in a position to convert this property into cash in order to make up Rs. 35,580/- necessary to pay court-fee. It is evident that he cannot be held to be a person “possessed of sufficient means” to enable him to pay court-fee. The sub-judge was correct in holding that he is an indigent person.

6. The second ground is that the allegations do not show a cause of action. Petitioner and respondent are relatives. Respondent was an employee in the Canara Bank. Petitioner was in some foreign country. He entrusted a cheque to the respondent for encashment. On the complaint of the petitioner that the respondent misappropriated that amount, the Bank initiated disciplinary proceedings against the respondent. Petitioner subsequently informed the Bank that the complaint happened to be filed on a mistaken notion of facts. Still the Bank continued the disciplinary action and dismissed the respondent. The suit is for realisation of a huge amount as damages on this score. The contention is that the claim is false, the allegations do not constitute cause of action and the claim, if any, could only be against the Bank or at least the Bank is also a necessary party.

7. In considering the question whether the applicant has a cause of action or not, the court has only to look into the allegations in the application and cannot enter into the merits of the claim. What further the court could look into is the evidence of the applicant. The scope of enquiry by the court under Order 33, Rule 5(d) is very limited Merits of the claim made in the application, which has to be treated as the plaint in case leave is granted, could be gone into only by the court which may try the suit. This provision is inserted only for the purpose of avoiding misuses. The court at that stage cannot evaluate the contentions and go into the merit of the claim to decide that all or any of the claims will not stand. The allegations in the petitions, if necessary along with the evidence of the applicant, alone could be looked into. If such allegations, taken as true, will not disclose any cause of action at all, the court may be justified in rejecting the application. Otherwise it will amount to abuse of the process of court resulting in harassment to the opposite side. So also if undisputably the cause of action on the basis of the allegations is barred by the provisions of any law such as res judicata, limitation necessary for sanction etc. the court may have the power in appropriate cases to reject the application. On the ground that the litigation is likely to end in failure the court cannot reject the application because that is a matter affecting the merits which could be considered only by the court trying the case. The court should exercise great caution in considering the question of cause of action in as much as the applicant is often without the advantage of the aid of a counsel Defence cannot be looked into for deciding cause of action. The court is not competent at that stage to enquire into doubtful or complicated questions of fact or law. Truth or falsehood of the allegations is also not a matter to be considered at that stage.

8. Going by these principles it cannot at this stage be said that the respondent has no cause of action against the petitioner on the basis of the allegations in the petition. The claim is for damages on the allegation that the respondent happened to lose his job and income and he suffered mental agony and loss of reputation on account of a false complaint filed by the petitioner. The legal implications of such allegations on the liability of the petitioner involves disputed questions of fact and law which could be decided only in the suit. Prima facie it cannot be said that there is no cause of action. So also the question whether the liability, if any, is that of the Bank alone or whether the suit is not maintainable without impleading the Bank and claiming relief against it also are matters for consideration and decision during trial. For the purpose of granting or refusing leave, it cannot be said on these grounds that the allegations do not show a cause of action.

9. The application of Rule 6 of Order 33 comes into play only when the court finds no reason to reject the application on any of the grounds mentioned in Rule 5. Notice contemplated in that rule to the opposite party and the Government Pleader is only to receive the evidence and hear the same on the question of indigency. In this case notice was issued to the Government Pleader, but he did not submit any report. Even though the enquiry regarding indigency is not exclusively a matter between the plaintiff and the State alone and the opposite party, is also vitally interested and entitled to participate and adduce evidence, the question of realisation of court-fee is essentially a matter between plaintiff and the state. Notice to the Government Pleader is intended as notice to the state which may be in possession of materials and information regarding indigency or sufficient means. That notice is only to alert the state to file a report or raise objection if it so chooses. Nothing in the rule provides that there must be a report from the Government Pleader or the question of indigency could be decided only on the basis of such a report. At any rate the opposite party is not in any way concerned with the issue of notice to the Government Pleader on the report, if any, filed by him. The court need only consider the materials furnished under Rule 7. On the ground that no notice was issued to the Government Pleader, or no report was filed by him, the opposite party will not get any right to challenge the order especially when he got a fair chance of contesting the matter. This aspect was considered in the decision in Balakrishnan v. Narayanan Nair 1984 KLT 374.

10. The question of indigency was decided on evaluation of evidence. The order cannot be challenged on facts or on the ground of want of notice to Government Pleader. The revisional power of this court u/s 115, C.P.C. is limited to cases of jurisdictional errors and in cases where in the exercise of the jurisdiction the subordinate court act illegally, so to say, in violation of some provisions of law pr with material irregularity which may include some material errors affecting the decisions in the matter of procedure. No such contingency has arisen in this case. The attempt of the revision petitioner appears to be to take a chance to see that somehow or other the ordeal of a trial could be avoided.

The revision petition is without any merits and it is hereby dismissed with costs.

Final Result : Dismissed


(1988) AIR(Kerala) 267 : (1987) 2 KLT 376