Bommineni Laxmi Devamma v. Bommineni Konappa .

Amareswari, J.:— In this appeal, we are concerned with the interpretation of Sub-rule (a) of R. 5 of O. XXXIII of the Civil Procedure Code.

2. The appellant Lakshmidevamma filed a suit for maintenance against her husband. She was not able to pay the Court-fee. She filed an application to sue as an indigent person. The learned Subordinate Judge, Penukonda found that she had a 18th share in the house left by her husband (sic) (father) at the time of his death and that she has not mentioned this fact in her application. He also found that even if that 1/8th share is taken into account, she has no means to pay the required Court-fee of Rs. 1906 - payable on the petition. However, he dismissed the application on the sole ground that she was guilty of suppression of the fact that she had 1/8th share in the house as she has not disclosed the same in the petition. Challenging the validity of that order, she filed this appeal.

3. This matter came up for hearing before our learned brother Upendralal Waghray, J., who thought it fit to refer to a Bench as there is a conflict of opinion between two learned Judges of this Court.

4. Order 33 relates to suits by indigent persons. Rule 5 provides for grounds on which the application can be rejected. Sub-rule (a) of R. 5 which is relevant for our purpose, says that where the application is not framed and presented in the manner prescribed by Rr. 2 and 3, the Court shall reject the application for permission to sue as an indigent person. Rule 2 reads:—

“2. Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexted thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.”

5. This rule contemplates giving of particulars as required in regard to plaints.

6. Order VII, Rule 1 prescribes the particulars to be stated in the plaint, namely:—

(a) the name of the Court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff;

(c) the name, description and place of residence of the defendant, so far as they can be ascertained;

(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;

(e) the facts constituting the cause of action and when it arose;

(f) the facts showing that the Court has jurisdiction;

(g) the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and

(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.

7. These are the pleadings required to be stated in the plaint and O. 33, R. 2 contemplates that these pleadings are to be stated in the application for permission to sue as an indigent person.

Order 33. Rule 3 is as follows:—

“3. Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person:

Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs.”

8. This Rule deals with the presentation of the application and states that it should be presented by the applicant or by an authorised agent if the applicant is exempted from appearing in the Court and if there are more plaintiffs than one, it can be presented by one of the plaintiffs. Rules 2 and 3 of O. 33 deal with the procedure. While R. 2 relates to pleadings, R. 3 speaks of presentation. Sub-rule (a) of R. 5 says that where it is not framed and presented in the manner prescribed by Rr. 2 and 3, the application to sue as an indigent person shall be rejected. In our view, Sub-rule (a) of R. 5 has nothing to do with the merits of the case. It deals with the format and presentation of the application. It enables the Court to reject the application at the threshold if it does not conform to the requirements prescribed under Rr. 2 and 3. But it does not empower the rejection of the application on the ground that the particulars mentioned in the plaint are later found to be incorrect or for non-disclosure of the properties possessed by the applicant. If on the material it is found that the applicant possesses more property than what is stated in the petition and if that property is taken into account, he or she would not satisfy the definition of an indigent person, the application can be rejected under sub-rule (b) of R. 5 which says where the applicant is not an indigent person, the application shall be rejected. Therefore, the non-disclosure of properties is immaterial. The only question for consideration under O. 33 is whether the plaintiff has means to pay the Court-fees. This is a matter which pertains to merits. Omission to mention some property possessed by the applicant in the petition, whether deliberate or accidental is immaterial. When once the Court finds that the petitioner is possessed of other properties than what is mentioned in the petition and even taking into account the omitted property, the petitioner is not in a position to pay the Court-fee, the application has to be allowed. The purpose, the object, intendment and mission of O. 33 is to enable poor persons to approach Courts for redressal of their grievances, and that poverty should not come in the way of their getting justice from Courts. This is also evident from sub-rule (c) of R. 5. This sub-rule says that if a person disposed of any property fraudulently or in order to apply for permission to sue as an indigent person within two months next before the presentation of the application, the application shall be rejected. But it is qualified by a proviso which says that no application shall be rejected if even after the value of the property disposed of by the applicant is taken into account, the applicant is not in a position to pay the Court-fee. Thus even in a case where some property is disposed of with a fraudulent intention to enable himself to apply, the Court is bound to consider whether he would be entitled to sue as an indigent person by taking into account the properties disposed of. This clearly establishes that the object of O. 33 is to help indigent persons and not to punish them for omission or non-disclosure of certain facts.

9. As already referred to above, under O. 33, R. 2 an applicant to sue as an indigent person is required to show the property particulars and their estimated value. Under R. 3 the application is also required to be signed and verified in the manner prescribed for signing and verification of pleadings. The failure to comply with any one of these would result in rejection of the application under O. 33, R. 5. These requirements relate to pleadings. They cannot be treated as fatal. If the application does not conform to Rr. 2 and 3, an opportunity should be given to rectify the defects. Order 33, R. 5 as it relates to procedure it is only directory and not mandatory. The applicant cannot outright be rejected. Some mistakes may occur sometimes deliberate, sometimes accidental. In a welfare State, poverty should not come in the way of a person for enjoyment as right to sue that is why O. 33 enables an indigent person to enjoy that right. At the same time a beneficial provision like O. 33 cannot be permitted to be misused by unscrupulous litigants.

10. We will now refer to the decisions:—

In Nuka Raju v. Rajani Chinna Appanna, AIR 1977 Andh Pra 15, a learned single Judge of this Court gave a literal meaning to O. 33, R. 5. There the application to sue as an indigent person was rejected on the ground that the applicant's life-interest in the property was not shown in the schedule. The learned Judge observed that whether the omission was deliberate or by inadvertence is immaterial. The argument that life-interest cannot be considered as providing means for paying the Court-fee which is plausible, was rejected as not right. The learned Judge followed the judgment of the Madras High Court in Kuppuswami v. Varadappa, AIR 1943 Mad 11, and held that every applicant should approach the Court for leave to sue as a pauper with a complete and full disclosure of his movable and immovable properties of his assets and that if he does not do it, the application is liable to be dismissed. The learned Judge further held that even if the undisclosed property is not sufficient to pay the Court-fee, it does not alter the situation. This extreme view has not been accepted by Venkatrama Aiyar in Ramakrishna Chetty v. Govindammal, AIR 1954 Mad 537. The learned Judge laid down only intentional non-disclosure of assets belonging to the petitioner would be a ground for dismissing the petition. Basing upon that, the learned Judge accepted the explanation of the petitioner in that case for not disclosing his interest in the provident fund. This is also the view taken by Karnataka High Court in V. Krishna Bhat v. Ravishankar, AIR 1978 Kant 117. Although the learned Judge observed that motive for suppression is relevant and that utmost good faith is expected of persons who seek permission to sue as paupers, he ruled that it is not every case of omission that is fatal and that only omission indicative of lack of bona fides or good faith on the part of the applicant would be fatal. The learned Judge further held that whether the conduct of a party lacks good faith and whether the omission to mention all the properties belonging to him is a deliberate act of suppression has to be ascertained from the facts of that particular case and surrounding circumstances.

The decision of the Rajasthan High Court in Maluram v. Arjun Singh, AIR 1972 Raj 311, where it was held that if the omission is inadvertent or bona fide, the petition is not liable to be dismissed and that the petition can be permitted to be amended is also to the same effect.

The Allahabad High Court has taken a similar view in State of Punjab v. R.P Kapoor, AIR 1976 All 355. The Allahabad High Court held that a mere omission to state certain property is not sufficient ground to dispauper the plaintiff under O. 33, R. 5(a) of Civil Procedure Code.

In State Bank of India, Secunderabad v. A. Kannabhiram, (1979) 2 Andh LT 28 (Short Notes), a learned Judge of this Court held that failure to comply with the requirements of the Schedule should result in summary dismissal of the application.

The Madras High Court in Al. Ar. Alagappa Chettiar v. Pl. Ct. Palaniappa Chettiar, AIR 1970 Mad 269, and the Patna High Court in Rajib Lochan Mahton v. Prafulla Kumar Ojha, AIR 1976 Pat 127 also took the same view.

The Madras High Court in Chellammal v. Muthulaxmi Ammal, (1945) 1 Mad LJ 53 : (AIR 1945 Mad 296), ruled that non-disclosure of some properties is fatal to the application. We are unable to subscribe to this view. Order 33, R. 5(a) does not say that omission to mention a particular property by itself entails the rejection of the application. For the defaulter, there is no way out excepting dismissal. The theory did not find favour with the learned single Judge of this Court in Satyanarayana v. Kotiratnam, (1987) 1 Andh LT 558. We are in complete agreement with the view taken by the learned single Judge. Such an interpretation would be supporting the “pound of flesh” theory. The defects in the pleadings can never be treated as incurable particularly in the case of the poor who want to sue as indigent persons. The object of O. 33 is not to punish, but to enable the person to sue as an indigent person. The suppression of any property in the petition should not per se entail dismissal. We accordingly hold that the decisions in Nuka Raju v. Rajani China Appanna, AIR 1977 Andh Pra 15, and State Bank of India, Secunderabad v. A. Kannabhiram, (1979) 2 Andh LT 28 (Short Notes) do not represent the correct legal position.

11. Applying the above principle to the facts of this case, it must be held that mere failure of the petitioner to indicate in the application that she had 1/8th share in the house left by her father at the time of his death and the value of the 1/8th share cannot be a basis for refusing the application. As pointed out above, a sum of Rs. 1906/- had to be paid as the Court-fee. Even taking into account the 1/8th share of the house property, it must be held that the plaintiff has no means to pay the Court-fee. The omission cannot also be said as deliberate. The petitioner is a poor and illiterate lady. She may not be even aware of the fact that she is entitled to 1-8th share in the property left by the father. The trial Court having given a finding that even if the said property is taken into account she will not be in a position to pay the Court-fee, missed the vital purpose of law and erroneously rejected the application.

12. We therefore, allow this Civil Miscellaneous Appeal and set aside the impugned order of the Court below with costs.

Appeal allowed.