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Durga Prasad And Another v. Srinivasa Sureka And Another Opposits Parties.
Factual and Procedural Background
The applicant, defendant in an ordinary mortgage suit, sought leave under Order 44, Rule 1 of the Code of Civil Procedure to appeal in forma pauperis. The mortgage was approximately Rs. 28,000, and the debt had increased to about Rs. 33,000. Although the mortgage involved members of a joint Hindu family, only the applicant and his son appealed. [1]
The applicant’s affidavit disclosed only utensils and clothes of trifling value and omitted his share in the equity of redemption and interests in two other properties. The opposing plaintiffs alleged that these interests had considerable value. [1][2]
Legal Issues Presented
- Whether the applicant had disclosed all his assets with the utmost good faith, as required for an application to appeal in forma pauperis. [1][2]
- Whether the application should be referred to the Subordinate Judge for investigation under Order 44, Rule 2, or rejected at the outset because of the inadequate disclosure. [3][4]
Arguments of the Parties
Applicant's Arguments
- Counsel argued that the matter had to be sent to the Subordinate Judge for investigation under Order 44, Rule 2, so that the applicant’s statements could be examined with the assistance of the opposing party. [3]
- The applicant attempted to explain that the equity of redemption and his interests in the other properties were practically or entirely valueless. [2]
Opposing Plaintiffs' Position
- The plaintiffs asserted that the applicant had failed to disclose his equity of redemption and had interests in two additional properties, which were of considerable value. [2]
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
An applicant seeking to appeal in forma pauperis must provide a properly signed and verified schedule of all movable and immovable property belonging to him, in accordance with Order 33, Rule 2. [1]
The court found that the applicant had an interest in the equity of redemption and other properties but had not disclosed those interests or stated their value with the required candour. The court emphasized that such applications require disclosure of the whole of the applicant’s assets with the utmost good faith, comparable to disclosure in insolvency proceedings. [1][2]
This complete disclosure is necessary because notice is given to the Government Pleader so that government officials can investigate the truth of the applicant’s statements. Concealment or omission of assets prevents an effective inquiry. [2]
The court held that referral under Order 44, Rule 2 is required only where the applicant has first made a good-faith disclosure and a factual contest then arises. If the application itself fails to disclose the assets with the utmost good faith, the court may reject it ab initio without further inquiry. [3][4]
Holding and Implications
APPLICATION REJECTED. The application was dismissed with costs, a hearing fee of two gold mohurs was imposed, and time was granted until 25 February 1930 to pay the court-fee. [4][5]
The direct effect was that the applicant was denied leave to appeal in forma pauperis. The court also stated that future applications found to conceal assets would be rejected at the earliest stage. [2]
Courtney-Terrell, C.J:— This is ait application under O. 44, R. 1 of the CPC, for leave to prefer an appeal in forma pauperis. The applicant was the defendant in the suit which was an ordinary mortgage suit by the mortgagee. The mortgage was for a sum of about Rs. 28,000 and the mortgage debt has increased since the date of the mortgage to about Rs. 33,000. The mortgage was by the members of a joint Hindu family. The applicant, however, and his son are the only appellants from the mortgage-decree out of the total number of mortgagors, the members of the same Hindu family. But it is clear that if the various defences to the mortgage suit including plea of non-execution of the mortgage were to succeed the other members of the Hindu family would benefit by the decision that the mortgage had not been executed. The applicant; who, as I have said, together with his son is the only appellant comes before us for leave to appeal as a pauper and it is obligatory upon him under the rules to set forth, as provide by O. 33, R. 2 of the CPC, a schedule of any moveable or immovable property belonging to him with the estimated value thereof and it has to be signed and verified in the manner prescribed for the signing and verification of pleadings. In making the application in the prescribed form the applicant produces an affidavit in which he sets forth his alleged property and the fact that he is unable to pay the court-fee and the only schedule which he provides is a list of a few utensils and clothes of trifling value. He does not set forth the value of his share of the equity of redemption of the mortgage in suit, and that some value attaches to that equity of redemption is beyond any doubt whatever.
2. The successful plaintiffs who oppose this application have made an affidavit to the effect that the equity of redemption has not been set out by the applicant and that the equity of redemption is of considerable value. They also state that the applicant is interested in two other properties of neither of which are particulars set forth in his affidavit. In reply to the affidavit of the plaintiff, the applicant sets forth an affidavit in whish he endeavours to explain that the equity of redemption in the mortgage suit is practically valueless and he attempts to set forth that his interest, such as it is in the other properties mentioned by the plaintiffs in their affidavit is in fact of no value. But the fact remains that he had the interest and that his own affidavit; should have set that interest forth at length and should have stated with the clearest good faith what it was worth, if anything. It is most important; that all applications for leave to sue or prefer appeals in forma pauperis should set forth with the utmost good faith as in the disclosure of assets in insolvency proceedings, the whole of the assets of the applicant. It is the practice that notice of the application is sent; to the Government Pleader in order that an investigation may be made by Government officials into the truth or otherwise of the applicant's statements of fact and, therefore, it is incumbent upon the applicant to state with the utmost good faith all the necessary materials for such an investigation. If he merely states that he is a poverty stricken individual with no assets but a few valueless articles and conceals the fact that he has interest in properties, of however little ultimate value, it is impossible for the enquiry to be conducted with any efficiency. Therefore, it must be understood in future that if it should be revealed in the course of the hearing of the application that the applicant has not stated with the utmost good faith the whole of his assets the application will be rejected at the very earliest stage.
3. Mr. Khurshaid Husnain on behalf of the applicant has contended that it is incumbent upon us to send the matter down for enquiry before the Subordinate Judge as is provided by O. 44, R. 2, in order that his statements may be investigated with the assistance of the other side. The requirement that we should send such matters to a lower Court for investigation only applies when the facts have been, in the first place, set out with the utmost good faith by the applicant, and upon that statement there is shown to be a contest; between the applicant and the opposite party as to the truth or otherwise of the statements.
4. But once it is shown that the application does not set forth his assets with the utmost good faith it is open to us to reject it ab initio and not to send it down for further enquiry. I would, therefore, reject this application with costs. Hearing fee two gold mohurs. Time is granted to pay the court-fee up to 25th February 1930.
James, J.:— I agree.
V.B/R.K
5. Application rejected.
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