The scope of enquiry by the court under Order 33, Rule 5(d) is very limited MeritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process. of the claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. 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 COURTHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission.
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 (CPCCode of Civil Procedure Main Sections: Filing, Summons, Trial, Judgment, Execution, Appeal, Interim Applications, Interim Injunction, Cost, Notice Rules: Order VII. Statutory Drafting and Forms: General Pleding) – 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 GovernmentGovernment HM Govt consists of the Prime Minister, their Cabinet, and junior ministers, supported by the teams of non-political civil servants that work in government departments. The American Federal Government consists of the Legislative, Executive, and Judicial branches. Pleader and his report not obtained and considered.
2. Art. 14 of the ConstitutionConstitution The Constitution encompasses the global system of rules governing constitutional authority. Simply reading selected provisions of the written text may be misleading. Understanding the underlying principles, such as federalism, democracy, constitutionalism, the rule of law, and respect for minorities, is crucial. Democratic institutions must allow for ongoing discussion and evolution, reflected in the right of participants to initiate constitutional change. This right entails a reciprocal duty to engage in discussions. Democracy involves more than majority rule, existing within the context of other constitutional values. Therefore, a profound understanding of these principles informs our appreciation of constitutional rights and obligations. Read more provides equality before lawLaw νόμος: Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. Law Practice. Read a scholarly article 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 justiceJustice δικαιοσύνη > judicature ( δικαιοσύνη) > judge (δικαστής / κριτής). The whole purpose of Plato`s Republic is to search for Justice. The purpose of Justice is to establish a perfect State. The State of happiness (ευτυχία), 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 matterMatter Normal matter is made of molecules, which are themselves made of atoms. Inside the atoms, electrons are spinning around the nucleus. The nucleus is made of protons and neutrons. Inside the protons and neutrons, exist indivisible quarks, like the electrons. All matter around us is made of elementary particles. ( building blocks of matter > quarks and leptons). All stable matter in the universe is made from particles that belong to the first-generation. Fundamental forces result from the exchange of force-carrier particles, which belong to a broader group called “bosons”. The strong force is carried by the “gluon”, electromagnetic force is carried by the “photon.” mainly between the State and the plaintiff though the opposite party is also having the right to get notice, contest the claim and adduce evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 . 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 moneyMoney Χρήματα, νόμισμα (currency), Old French monoie, Pecunia, Money supply, Reserve money, Monetary System, Money-laundering, Electronic Money, Money Transfer, Promissory notes. Coin of Alexander (330 B.C.E). Dematerialized form is Paper Currency( In USA 1600 CE and in 1861 in India). Money makes men. Balance of Payments, Net borrowing. Euro, Dollar, INR. 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 fundsFund The term refers to assets of every kind, whether corporeal or incorporeal, tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets. 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 dignityDignity αξιοπρέπεια > The basic dignity of a human has been protected by the Constitution and other Human rights Laws. If a man fails to provide it to another man, then he disrespects his existence and standing. 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 timeTime χρόνος. Judicial: Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) यमः , पुं, (यमयति नियमयति जीवानां फलाफलमिति । यम् + अच् । विश्वे च कलयत्येव यः सर्व्वायुश्च सन्ततम् । अतीव दुर्निवार्य्यञ्च तं कालं प्रणमाम्यहम् ॥यमैश्च नियमैश्चैव यः करोत्यात्मसंयमम् । स चादृष्ट्वा तु मां याति परं ब्रह्म सनातनम् ॥ 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 documentsDocument It means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records. (Bharatiya Sakshya Adhiniyam 2023) 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 damagesDamages Damages (often termed ‘user damage’) are readily awarded at common law for the invasion of rights to tangible moveable or immovable property (by detinue, conversion or trespass). Damages are also available on a similar basis for patent infringement and breaches of other intellectual property rights of a proprietary character. 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 judicataRes judicata Rights of co-defendants: Har Narayan Tewari (D) Thr. Lrs. v. Cantonment Board, Ramgarh Cantonment & Ors.[2024] 7 S.C.R. 29. Govindammal (Dead) by Legal Representatives and Ors. v. Vaidiyanathan and Ors. [2018] 11 SCR 1092 : (2019) 17 SCC 433., limitation necessary for sanction etc. the court may have the powerPower The amount of energy transferred or converted per unit of time. In the International System of Units, the unit of it is the watt, equal to one joule per second. The capacity of energy infrastructure is rated using watts, which indicate its potential to supply or consume energy in a given period of time. A Power-plant rated at 100 MW has the potential to produce 100 MWh if it operates for one hour. 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 factFact Something तथ्य (In-formation) that truly exists or happens or some-thing that has actual existence. Circumstances: a fact or event that makes a situation the way it is. Indian Evidence Act: It means and includes— (i) anything, state of things, or relation of things, capable of being perceived by the senses; (ii) any mental condition of which any person is conscious. “facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. or law. TruthTruth Mathematical 'truth' may not be agreeable with the philosophical 'truth.' A question may be asked on propositional 'truth' on the grounds of physics, that space and time actually don't exist. Vedic injunction Satyam Param Dhimahi, technically Satya is none other than Brahman. For Madhymic Buddhists there is nothing as such to be called 'truth', as all the corresponding facts are only mental projections. Apart from Bio-neuroelectricity nothing exists for Biological Cognition. So-called religious truths are nothing more than a marketing strategy. 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 petitionPetition αναφορά > παρακαλώ (Prayer). 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 jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. 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 costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..
Final Result : Dismissed
(1988) AIRAIR All India Reporter(Kerala) 267 : (1987) 2 KLT 376
