ORDER
M.F. Saldanha, J.
1. This seemingly innocuous Civil Revision Petition which at first impression appears to be an exercise of “much ado about nothing” with due apologies to Shakespeare, does in fact throw up issues of consequence in relation to the law relating suits by indigent persons. Prior to the amendment of the law, the expression used was suing in
“forma pauperis” and at that time there were well defined limits which prescribed that only an absolute pauper whose total assets wearing apparel, pots and pans and earthly possessions aggregated in value less than Rs. 500/- was alone entitled to the extension of the benefit of being exempted from the payment of ad valorem Court fees. The result of prescribing such an arbitrary unrealistic limit was that the benefits of the provision were totally excluded from a large number of genuine litigants who were economically within the strata of a person who is incapable of paying the Court fee and consequently, they were disqualified at the very threshold from approaching the Courts and seeking justice. The legislature brought about sweeping changes in the year 1976 and Order XXXIII of the CPC now amplifies an expanded definition which is set out in Rule-1 which is reproduced below :
“Suits may be instituted by indigent person–
Subject to the following provision, any suit may be instituted by an indigent person.
Explanation I — A person is an indigent person–
(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by taw for the plaint in such suit, or
(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.
Explanation-II- Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.
Explanation-III–Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.”
2. The law as it now stands prescribes that an enquiry is required to be conducted by the Court for purposes of ascertaining as to whether the applicant is an indigent person viz., one who is not possessed of sufficient means to pay the Court fee as is prescribed. The first requirement of the law, therefore, is that the applicant has to establish in realistic and correct terms as to what is the specific value of the subject matter of the suit and this aspect of the law assumes some importance. While there is a tendency while computing Court fees, to invariably try and undervalue the assets or the properties that are the subject matter of the dispute in order to get away by paying a lower court fee than the legitimate one; a Court cannot overlook the fact that in a case where the applicant desires to ask for exemption, the easiest and the most mischievous strategy would be to grossly overvalue the properties, to set out some staggering and mind boggling figure on which the ad valorem Court fee itself would be an astronomical amount and to then very conveniently sail through by pointing out the physical impossibility of raising that amount of money. This precisely is the first head of rank dishonesty on the part of the plaintiffs who have indulged in kite-flying and valued the assets at Rs. 267.86 crores purely for purposes of hoodwinking the Court. No where has the figure of the Court fee been set out — something that is far from honest and sufficient to totally disqualify the plaintiffs. The Courts could easily be mislead by this tactic because a Judge is always on guard against situations whereby there is under valuation and could easily be misled by the opposite. This is a facet of the law which has received very little or virtually no focus hitherto but it has come to light in the present proceeding and therefore, needs to be very carefully analysed and highlighted for the guidance of the Courts in this and other similar cases.
3. The corollary to the aforesaid requirement is that on the basis of the valuation the specific figure that represents the Court fee payable must be set out. A vague averment to the effect that the Court fee payable is “very large”, that it is “very high”, that it runs into “lakhs of rupees” or “crores of rupees” as is averred in the present case and furthermore, that it is out of the reach of the applicant will not satisfy the requirements of law. The logical reason for this is because under the present definition of indigent person which is quite liberal, the Court is required to decide on the crucial question as to whether the applicant has the capacity to
pay the rightful Court fee. If in order to secure undue benefit under Order XXXIII the Court fee is projected at a figure very much higher than what it in fact is, the Court will not be in a position to record a correct finding because, irrespective of what the opposite parties may point out, the Court is not obliged to compute the correct Court fee on its own because in the proceedings under Order XXXIII CPC the entire onus is on the applicant-plaintiff. This hitherto overlooked aspect of the law is therefore very crucial and in a situation where the valuation appears to be unscientific, incorrect and unreliable, the only inevitable consequence would be that the application to sue as an indigent person will have to be dismissed on this ground alone because the very foundation of the application or rather its basic structure is itself flimsy, shaky and unreliable.
4. Briefly stated, the plaintiffs before the trial Court claim to be the wife of the late Dayanand Sagar and his son. At a subsequent point of time, because the suit was tiled in the year 1988 and by the time the enquiry was held the first plaintiff died, one Smt. Pramila Narayanaswamy who claim to be her daughter through plaintiff No. 1’s marriage to Prem Singh, was brought on record. I need to mention here that there is something dubious about all of this because the sons of the late Dayanand Sagar have stated that plaintiff No. 1 – Kesari Bai was never married to their father and that she was the wife of Prem Singh and that she has staked a false claim only because the late Dayanand Sagar possessed substantial assets. Plaintiff No. 2 Prithviraj Sagar styles himself as the son of Dayanand Sagar through the marriage between him and Kesari Bai. The L.Rs. viz., sons of Dayanand Sagar who are the defendants to the suit have pointed out that this Prithviraj Sagar is the son of Prem Singh i.e. the lawfully wedded husband of Kesari Bai, plaintiff No. 1 and what clinches the issue is that he had changed his name to Sagar after the death of the late Dayanand Sagar. What is perhaps the tell-tale admission emanates from the fact that in the course of the evidence prithviraj Sagar has referred to Smt. Pramila Narayanswamy as his sister. I do not need to examine this witness with a fine teeth comb because this is not the stage where the locus standi has to be decided, but it is relevant for the limited reason that the Courts often have to consider the very difficult aspects of bona fides in a case where a well deserving litigant may be precluded from agitating the claim before a Court and a situation in which an imposter or an undeserving litigant puts forward a claim purely in order to litigate, harass, profit through what is colloquially known as nuisance value, all of which combined, is an excellent plank for blackmailing and has its own benefits. To this limited extent, what I need to point out is that this evidence coupled with the fact that the original plaintiff No. 1 has not produced even elementary material to satisfy the Court that she was the lawfully wedded wife of the late Dayanand Sagar and that plaintiff No. 2 Prithviraj Sagar is the legitimate son of Dayanand Sagar born out of the lawful wedlock between the two of them, is virtually absent. It can never be argued that these fundamental aspects can be dealt with at a later point of the litigation, because this is the material that provides the foundation for the cause of action. While admittedly Kesari Bai was married to Prem Singh the plaintiff would have had to first disclose as to how and under what circumstances she became the wife of Dayanand Sagar and whether this was a lawful alliance. The defendants further contend that she was never his wife nor was plaintiff No. 2 their son and in the absence of enough material to establish this relationship, these two persons would be disqualified from being categorised as L.Rs. of Dayanand Sagar and further more from having a right to sue for partition of his property. We are required to deal with the case on the basis of the record as it now stands and I am fortified in the view that both the bona fides and locus standi of the plaintiffs are extremely doubtful because it is not the mere plaint that is before the Court, the litigation has gone on for 15 years, it is hotly contested, there are voluminous pleadings on record, the case has made two earlier trips to the High Court, oral evidence has been produced, and the cumulative record of the case indicates virtually zero evidence in respect of these two factors. The reason why it has been necessary to devote considerable attention to this proceeding is because there are situations in which a Court will permit the deferment of Court fees, which can always be recovered at a subsequent point of time and but for the indulgence, the litigant would have been disqualified from the benefits. The example may be cited of land acquisition cases in which a poor farmer appeals to the High Court for enhancement of compensation and it is a borderline case where the party who is required to pay the Court fees will have to sell his bullocks, remaining agricultural land and pawn the wife’s jewellery, all of which consequences are irretrievable. On the other hand, where it is self evident that on a perusal of the record the High Court is bound to enhance the compensation, the Court fees can always be recovered out of that amount without doing the damage and where the Court is satisfied on bona fides, this is an indulgence which is extended to the litigant. For this to be done, the Court must be virtually certain that the litigant will succeed in the litigation and it is for that reason that the examination on merits becomes essential. Where there is a strong possibility that the party is a fraud, and it is dead certain that the suit will be dismissed, the consequences are disastrous because the court fees will have to be written off and it is for this reason that a scrutiny of the merits is necessary in law.
5. Applying these principles and after hearing the learned Counsel on both sides and examining the records threadbare the position that emerges is that both the bona fides and locus standi are extremely vulnerable, that the chances of success consequently in this proceeding if it carries on are dismal and virtually border on zero and if this is the position, the next issue is as to whether the litigation should be allowed to continue.
6. The suit was filed in the year 1988 and the trial Court was virtually hoodwinked by the plaintiffs into permitting them to pay a fixed Court fee of Rs. 200/- in a case in which they now inform the Court that the Court fee will be several crores of rupees. When the issue relating to payment of ad valorem Court fees was agitated by the defendants the litigation came up to the High Court and the High Court ultimately upheld the position that the ad valorem Court fee is required to be paid. Having failed in the first attempt to virtually deceive the Court, which is evident from the fact that the High Court in terms held that the ad valorem Court fee is payable and not a fixed Court fee, after 5 years an application was filed under Order XXXIII to sue as an indigent person. The sum total of the averments in the application lead upto the position that the Court fee is massive and that the plaintiffs do not have either the assets or the resources to meet that requirement, The maintainability of this application was challenged by the defendants principally on the ground that Order XXXIII requires the applicants to make a full, complete and true disclosure of all assets and that this was not done. For instance; apart from one or two vague statements to the effect that plaintiff No. 1 gets a pension of Rs.3000/- per month and that plaintiff No. 2 who was a hero in films is unemployed and neither has assets nor income, the relevant details relating to the bank accounts and the correct financial status were never produced. The maintainability of the application was challenged principally because the High Court had directed that an enquiry be held as contemplated under Order XXXIII and the trial Court upheld the maintainability of the application. A strong argument was advanced before me that this is an indication of the fact that the Court was satisfied that the applicants were indigent persons. To my mind, the argument is fallacious because the Court only held that the application was not liable to be rejected on grounds of non-compliance but this had nothing to do with the final adjudication on the question of whether in fact it meant that the case of the plaintiffs could to be categorised as indigent persons.
7. In the cross examination of plaintiff No. 2 it has very clearly emerged that the valuation of the properties has been done on a wholly erratic and incorrect basis. It is very clear from this evidence that the plaintiffs have indulged in virtual kite flying when it has come to the aspect of valuation of each of the items in the schedule and it is by this incorrect means that they have arrived at a total of Rs. 267.86 crores. It is obvious to me that the sole purpose of grossly over pitching the case was in order to present to the Court a picture wherein the amount of Court fee payable would be so staggering that it would clearly be out of reach of the plaintiffs.
8. I have earlier referred to the need for projecting and presenting the realistic and correct figures and this case has clearly elicited all these legal requirements. It is impossible on the present record to accept the figures even prima facie and even after a lot of watering down, to be in no way representative for all the realistic values and if this is the position, then it is impossible for the Court to arrive at the correct Court fee payable. The mischief behind the entire operation is self evident from the fact that no where has the figure representing the Court fee emerged. This is very important because in a situation where the Court fee payable is ‘x’, the Court will have to then find out as to whether the plaintiffs are capable of paying that figure and if ‘x’ itself is totally vague or unreliable, no Court can record a finding that the litigant is incapable of paying up to the extent of the imaginary figure. Apart from other aspects of the case, this record to my mind, undoubtedly and unequivocally indicates that on this ground alone, the revision will have to be allowed and the suit itself will have to be dismissed.
9. One of the considerations before the Court as far as this class of litigation is concerned, which is very common in our State, is the question as to whether these hotly contested cantankerous suits if they are devoid of substance or if they are legally untenable, should be permitted to continue on the basis of the old argument that no premature termination should be applied and that they should be allowed to die a natural death after a couple of decades. This suit if it is to be heard on merits would occupy a couple of hundred hours of judicial time and if it is a valid and bona fide litigation it would certainly be entitled to continue. But if these factors are absent, it would be totally disqualified from being allowed to burden the justice dispensation system merely because the plaintiffs want to try their hand at a speculative effort of getting a share in the estate of the late Dayanand Sagar.
10. By the time the evidence was recorded the plaintiff No. 1 had passed away and the plaintiff No. 2 has given evidence. According to him plaintiff No. 1 was a retired school teacher and her pension came to Rs. 3000/-per month. He states that Kesari Bai was old and infirm and that she was a heart patient and her medical expenses alone amounted to about Rs. 2000/- p.m. According to him he has no assets or income and he was staying with her in a rented accommodation which costs them about Rs. 1000/- per month. There is something seriously wrong with these figures and with economics because even testing the plaintiffs own case, it would be very clear that the plaintiff is keeping back the true facts as it is physically impossible for the two of them and that too old and infirm persons to manage on no income. The bank accounts and the bank’s statements have not been produced, not a single document has been produced and the Court is expected to gullibly swallow the statement that they are financially so badly off as not to be able to afford the Court fees.
11. One of the arguments presented before me by the respondents’ learned Advocate is that this proceeding is hotly contested, and that the respondents have not been able to show to the Court that the plaintiffs possessed adequate source or resource. It is not the question of feasibility of the opposite party to be able to expose the true assets and financial position of the applicants because this is not requirement of the law. In cases where the defendants have evidence they can certainly produce it but it is not their duty to disprove the case of the applicants. It is very necessary to record that the scheme of the law is to the effect that two basic ingredients are predominant, the first being that it is condition precedent for the plaintiffs-applicants to make a full and true disclosure of all their assets and resources. Where this is not done or where it is evident to the Court that the disclosures are untrue or unreliable or incorrect which boils down to the inference that they are half truths or totally false, the application will have to be dismissed on this ground alone. I have checked and crosschecked the evidence on record and I need to only highlight one admission by the plaintiff No. 2 who has in no unequivocal terms admitted in cross-examination that he requires an amount of Rs. 2 lakhs per month for his maintenance. It is not for the Court to dissect or question the same. Respondents’ learned Advocate struggled to put forward the weak explanation that this was a misunderstanding and that the witness really meant that the plaintiffs were entitled to that figure as and by way of their share of the estate. This explanation is meaningless and it is of no consequence. I need to hold, on the basis of the evidence under this head that the plaintiffs have not fulfilled the legal requirement of making a full and true disclosure of their assets and that consequently, the finding of the trial Court which proceeds on the basis of this material is required to be set aside.
12. One of the subsidiary issue that has arisen in this case emanates from the fact
that the plaintiff No. 1 had admitted that he was a film actor and that he was a hero in a long line of films which have been named by him. Realising the implications, he has thereafter tried to cover up by stating that subsequently he used to do very small and insignificant roles in films and that he has given up acting. A Court needs to take judicial notice of the fact that this is a profession in which even if the life of a hero is relatively short lived that the short term gains are astronomical. The witness has not indicated a single figure with regard to his earnings, the period of time during which he was earning and what has happened to the massive amounts of money that he must have earned all through his career as a film actor of some consequence. This is an aspect of the case which the trial Court has totally bypassed and even though this Court is exercising its revisionary powers, while deciding the point of taw involved, it cannot be done in a vacuum because it is all a mixed question of fact and law on the basis of which the High Court is required to decide as to whether the impugned order is vulnerable or not.
13. A submission was advanced on behalf of the petitioners before me that under Rule 6 of Order XXXIII it is essential that notice be issued to the State and that this is for the purpose of an independent enquiry being held through the state machinery, which has the powers of investigation for purposes of deciding as to whether the disclosures in relation to financial or economic status such as the assets, income, etc. are correct or not. There is an added reason for this insofar as, the Court fee is payable to the State and if exemption from this payment is to be allowed the State is the aggrieved party and the State should therefore have the full opportunity of establishing that the Court fees are in fact payable. In this case, the respondents before me contend that notice was given to the learned Government Advocate and that nothing happened thereafter. The petitioners have contested this position and I do find that if proper notice had been given that it is impossible to accept that in a case where a Court fee of several crores of rupees is likely to be paid that the State would not have appeared and contested the proceeding. Even assuming that some procedural requirements were complied with, to my mind there is a duty cast on the Court because it is the Court which is the
inquiring authority and the object of the enquiry is to arrive at a true and correct verdict and not a biased or truncated one which pre-supposes the fact that the Court is obliged to insist upon a report from the Government Authorities because this is an independent report which is submitted after a due and meticulous investigation and under Rule 1A a Court is entitled to rely on this report. The fact that this has not happened in the present case is one more valid ground on which the order of the trial Court is virtually vitiated. It was sought to be argued that if this Court was of the view that an independent enquiry is essential, that it is still open to either this Court or to the trial Court to call for such an enquiry, to consider the report and pass fresh orders. I have carefully considered the submission and to my mind it is totally outside the scope of this revision proceeding for this Court to reopen the enquiry because it could involve the reception of evidence. Whether the trial Court should be directed in a 13 year old litigation to hold a fresh enquiry is the last aspect and to my mind the answer to this is an affirmative ‘no’. I have already indicated very cogent, substantial and valid grounds why the application itself will have to be dismissed on merits and it is only in a situation where the Court is seriously considering whether the application should be allowed that the question of rebuttal evidence would come in. Also, as I have indicated earlier, the burden of proof in the enquiry is on the applicants and this includes the duty to ensure proper procedural compliance in the enquiry and nothing stopped the applicants from applying to the Court to direct the State to file its report but for obvious reasons this was not done and it will be legitimate in law under these circumstances to draw an adverse inference against the plaintiffs on this ground also.
14. One of the subsidiary arguments that has been advanced before me is to the effect that this is a special proceeding insofar as the persons before the Court are trying to demonstrate that they do not have the capacity to pay Court fees. An unfortunate situation has arisen because the plaintiff No. 1 Kesari Bai died during the pendency of these proceedings and normally the application for suing as indigent person could only survive as far as plaintiff No. 2 Prithviraj is concerned. However, the daughter of Kesari Bai Smt. Pramila Narayanaswamy has impleaded herself and is effectively the applicant No. 2 before the trial Court in this proceeding. It was contended on her behalf that she is the legal heir of Kesari Bai and that it is the indigency of Kesari Bai and not of Pramila Narayanaswamy that the Court is required to adjudicate upon. The argument is fallacious Kesari Bai has passed away and her claim to a share in the estate of late Dayanand Sagar has not been given up but is being prosecuted by her daughter Pramila. Pramila has therefore stepped into the shoes of Kesari Bai and prosecuted the present application for leave to sue as an indigent person. There can be no one way traffic in these situations and the liability to pay the Court fees which fastens to Kesari Bai now stands transferred to Pramila and if Pramila desires exemption then her economic condition and status are of relevance. From the little material that has come on record it is evident that her husband is a Senior Medical Practitioner and that they own a house at Koramangala and that they come within the category of affluent persons. There is some reference in the cross examination to the fact that their house property is not valued at Rs. 40 to 50 lakhs but that it is worth over a crore of rupees. To my mind, the failure on the part of Pramila to make a full and true disclosure of her property and assets is fatal and in the facts and circumstances of this case, her application would also have to fail.
15. Having dealt with the law and facts relating to this case with some degree of depth, what I need to emphasise is that the law will have to be interpreted only one way viz., that a party who applies for exemption from payment of Court fees on the ground of indigency will have to satisfy the Court about one crucial ingredient alone, viz., that the party does not have the capacity to pay the Court fees. It is not sufficient for the party to make a bald statement to this effect because the filing of false statements in pleadings in this country are the order of the day and consequently, it is a requirement of law that the statement has to be substantiated to the satisfaction of the Court. In the present context it would mean that the party does not have the capacity not only to pay the Court fees from one’s own assets or bank balance but it would also extend to the situations of satisfying the Court that the party is not in a position to raise the requisite funds or in other words, to generate the money that is required for the payment of the Court fees. This is a heavy and an expansive burden cast on the applicant and it is not to be loosely construed by the trial Court as has happened in the present case. If Courts were to act on the basis of mere statements contained in the pleadings it would open a Pandora’s box because in every case where the Court fee is substantial the party would dodge the payments by putting forward a false statement and the Court would proceed on the footing that a statement of oath is deemed to represent the truth and act on it to the detriment of the State and more importantly to the undue advantage of the guilty party and to the prejudice of the defendant. Property disputes are characteristic of the fact that the Courts are flooded with cases of the present type where claims emanate virtually from the blue and it is necessary to put the breaks on such litigation by making it condition precedent that if you want to stake your claim to substantial assets that you will have to pay for the exercise.
16. Dealing with the law on the point, the petitioners’ learned counsel drew my attention to an earlier decision of this Court reported in (2001)5 Kant L.J. 225 : (2002 AIHC 746), M. L. Balaram v. Canara Bank Overseas Branch, Bangalore. In this case the learned single Judge of this Court reiterated the principle that in an application for permission to sue as an indigent person a duty is cast on the applicant to disclose all assets, that there must be utmost good faith in the disclosure of assets and any intentional departure from it attracts dismissal of the application. The learned Judge while analysing the law on the point had occasion to distinguish the decision of the A. P. High Court reported in AIR 1995 A. P. 115 (Sic) and to refer to the decision . The learned single Judge has virtually restated the law on the point when he laid emphasis on the expression ‘utmost good faith’ because the inquiries have their limitations and the Courts therefore very very heavily dependent on absolute scrupulous honesty and the moment it is evident to the Court that something has been kept back and that an oblique and clandestine attempt is being made to hoodwink the Court, the only course of action open is to dismiss the
application outright. Applying this test, it is more than evident from the conduct of the original plaintiffs and Smt. Pramila Narayanaswamy who has replaced plaintiff No. 1 that the disclosures made to the Court are neither full nor true, that there has been a lot of suppression, that even statements made in evidence are half-truths and that the onus of establishing that the plaintiffs do not have the capacity to pay the Court fees has not been discharged.
17. In one of the latest decisions of this High Court Doddananjappa v. The Sub-Registrar, Hoskote Taluk, Hoskote, the learned single Judge of this Court once again reiterated the absolute necessity of utmost bona fide that is required in the matter of disclosure of assets and what was highlighted in that decision was that deliberate concealment of material particulars of properties entails dismissal of the application. In this decision, the learned single Judge has examined the law on the point virtually threadbare and has referred to the following decisions :–
1. AIR 1964 Manipur 31,
2. AIR 1965 Punjab 331,
3.
4. ,
5. ,
6.
7. (2001) 5 Kant L. J. 225 : (2002 AIHC 746), (the decision rendered by Kumar J., referred to earlier).
8. 2000(3) Kant. L. J. 30 (Sic),
9. (1994)3 Kant. L. J. 445.
18. The petitioners’ learned counsel relied on a decision of the Madras High Court , wherein the Court once again insisted upon disclosure of all assets on affidavit in support of the application and held that any breach of this requirement was fatal. As far as the enquiry into pauperism was concerned, the Court has held that the report called for from the Government on questions of fact is final and cannot be questioned. The other important feature of this judgment is that the Court has while interpreting the expression “sufficient means” held that it means the capacity to raise money to pay the Court fee. It is not only the cash that the applicant is possessed of but included the money that can be raised over properties and from all other quarters. I need to record here that in the present case therein virtually zero compliance as far as these aspects of the law are concerned.
19. For purposes of making the respondents’ contention that the impugned order is an interlocutory order and that therefore the present revision is not maintainable, the petitioners’ learned counsel drew my attention to the observations of the Supreme Court wherein the Court has clarified that the true nature of the order will have to be examined by the High Court and not the stage at which it is passed. Undoubtedly, there are orders which finally determine disputed issues between the parties which may passed at an interim stage and to the extent that the issues have been finally decided, would not fasten any bar to the filing of a revision petition against that order. In this case, the issue as to whether the present respondents are indigent persons or not has been finally determined by the trial Court through a speaking order and in my considered view, there is no ambiguity about the maintainability of this revision petition.
20. Again, on the point of exercise of jurisdiction by the High Court at this stage, my attention was drawn to the decision of the Supreme Court . This decision was cited in response to the contention raised by the respondents before me that the powers of the High Court in revision are limited and that the scope of the inquiry which the petitioners are asking the High Court to undertake while deciding this CRP are much wider and that there is no scope for the same. All that I need to record is that the maintainability of the present revision petition is beyond question and for purposes of doing true and full justice to the parties it is incumbent that this Court examines and applies its mind to the very record that was before the trial Court when the impugned order was passed and to examine the correctness of that order and while exercising these powers, there can be no technical barriers or circumspection of power.
21. Pursuant to the notice from this Court the respondents have appeared through their learned Advocates M/s. K.S. Ramesh and Associates. The learned Advocate Sri Dayanand Hiremath argued the case on behalf of the respondents and I have complemented him in open Court because he has studied his brief thoroughly, he was perfect as far as the facts are concerned, he has also done the requisite legal research and he has done not only a good but an admirable job. The reason why 1 need to refer to this fact is because a Court must give credit where credit is due and also because the learned Advocate though very competent does not come within the bracket of Senior Lawyers. The Petitioners were represented by learned senior counsel Sri Tarakram ably assisted by Sri H.S. Sachidananda and towards the end of the arguments the respondents’ learned counsel made an unusual plea to the Court. He submitted that if he had not been able to match the skills of the learned senior counsel on the other side despite his best efforts, that in the overall interests of justice the Court should request one of the Sr. counsel to appear virtually as amicus curiae on behalf of his client in order to supplement or complement his arguments in the interests of justice. The arguments had been heard over a considerable period of time and the respondents’ learned Advocate received a lot of support and assistance from the learned Advocate Smt. Pramila Nesargi who is one of the very competent, very senior and good Advocates practicing in this High Court. She had enough of time to go through the pleadings and to also apply her mind to the law and purely for the satisfaction of the respondents’ learned Advocate I afforded her an opportunity of advancing her submissions which she very willingly did.
22. The learned counsel first submitted that since the defendants have sought to dispute the inability of the plaintiffs to pay the Court fees that it is not enough for them to challenge the contents of the indigency application but that it is necessary for them to adduce positive evidence in order to satisfy the Court that the plaintiffs have the capacity to pay the Court fees. In other words she submitted that once the plaintiffs plead inability that in the absence of evidence to the contrary, their plea will have to be accepted. The extension of this argument is to the effect that since in the present case the defendants have not led any evidence in rebuttal that they are precluded from challenging the decision of the trial Court which is in favour of the plaintiffs. Though this argument appears to be relatively profound, it is necessary to record with respect that as far as indigency applications are concerned, it is really a two way process between the applicant and the Court and the entire onus of establishing the inability lies on the applicant. Since it is a question of loss of revenue to the State there is a parallel requirement that notice be issued so that the investigative machinery of the State can be used for purposes of verifying the truth. Under the scheme of the law there is no duty cast on the opposite party to the litigation to either lead evidence in rebuttal or to satisfy the Court about the ability of the applicant to pay the Court fees. This stands to reason because the defendants will be under a handicap as far as the personal and private affairs and assets and income of the plaintiff are concerned and furthermore the law only gives the opposite party the option to produce such material as is relevant for the decision of the application. In a given instance where the defendant produces no rebuttal evidence, the plaintiff can never succeed by default but will always have to go back to the old position of succeeding on merits.
23. Mrs. Nesargi, then submitted that the rigour of these provisions under the CPC prior to its amendment has now been watered down and that as the law now stands, the situation is more liberal and that the Courts must understand the legislative intent which is to the effect that if a party is unable to pay the Court fees that the party should not be disqualified from applying to the Court for appropriate reliefs, one of the options being that the money can always be recovered at the stage when the decree is passed. She submits that if the plaintiffs in this case are directed to pay the Court fees which are extremely high that they have already made it clear that these funds are beyond their means and the result would be that the suit would have to be dismissed and they will be disqualified from agitating their claims which is not the scheme of the law. She therefore submitted that the order passed by the trial Court should be maintained and that when the properties are partitioned the Court fees could always be recovered from the plaintiffs share.
24. I shall deal with the last part of the argument first because I have already pointed out that this presupposes that the plaintiff will succeed and also presupposes that the decretal share will exceed the Court fees payable. If the suit is dismissed neither of these eventualities can take place and the Court fees will have to be written off. In the present instance I have taken the trouble of verifying the pleadings. The plaintiff No. 1 who claims to have been the wife of the deceased has produced nothing to establish the status and that virtually writes off the plaintiff No. 2. Moreover, the plaintiff No. 1 has died and is therefore no longer available to substantiate her case even through oral evidence and the possibility of success in this suit even on merits is not only remote but it would not be out of place to record that the prospects are virtually nil.
25. As regards the main limb of the argument, to my mind on the present facts it is totally misplaced because I have recorded a clear cut finding that the plaintiffs had not been fair, truthful and honest, they have not made the full disclosure and that consequently there is no ground on which this Court can uphold the position that factually they do not possess the ability to pay the Court fees. Consequently, they are relegated to the position of being on par with any litigant where the clear cut requirement of law is that non-payment of the Court fees would entail dismissal of the suit. It is necessary for the plaintiffs to remember that Order XXXIII makes a concession in favour of a certain class of persons only and this is an exception to the rule or requirement or precondition for the payment of Court fees. Only if the party establishes the status of an indigent person does the concession hold good. This argument is therefore fallacious because the law does give the privilege to every indigent litigant to approach the Court without payment of Court fees, but the law does not give the benefit to a dishonest litigant who wrongly claims the benefit in order to avoid paying the court fees and therefore, in such cases the Courts do pass conditional orders permitting the plaintiff to continue on payment of the Court fees. Where there is a finding of the Court that the plaintiff is not an indigent person by implication it means that the plaintiff has the capacity to pay the Court fees and if despite this the suit gets dismissed for non-payment of Court fees it is with the plaintiffs’ own volition and cannot be construed as an act of deprivation.
26. The last submission canvassed by
the learned counsel was that these provisions must be liberally construed in order to benefit the genuinely poor persons. It is a little difficult to accept the arguments of this type because attempts will always be there since the provision of Order XXXIII are rather loosely worded, to try and wriggle out of the obligation to pay the Court fees particularly where the amounts are substantial, and liberality is not to be understood to mean a situation where the Courts will close their eyes to all such attempts and allow the exchequer to be cheated. At the same time, the approach of the Courts will always be firm, sympathetic in order to ensure that no injustice is done in genuine cases but at the same time, in cases of the present type where more is kept back than disclosed to the Court, indulgence under the head of sympathy will lead to miscarriage of justice. Civil litigation in the trial Courts does not have to pass through an admission stage and nothing prevents speculative litigation or blackmail litigation where any false pleas are put forward in the hope that the opponents would come forward to buy peace instead of going through 3 and 5 decades of litigation. The present case is a classic instance where to my mind, if the plaint had to go through an admission process the case would have been summarily dismissed but that requirement not being there, the plaintiffs have succeeded in litigating for 18 years and the suit is still at stage -1 of the proceedings.
27. Undoubtedly, this is a vigorously contested litigation and this Court therefore was duty bound to examine the legal contentions raised very meticulously since the implications are serious to both the parties. If the impugned order is upheld the litigation proceeds but if it is set aside the litigation will virtually be terminated and therefore, there is a heavy responsibility on this Court. In keeping with that, I have examined the records threadbare and having done so, in my considered view, for the reasons already set out, in this judgment the impugned order will have to be set aside. Accordingly, the order passed by the trial Court categorising the plaintiffs as indigent persons and exempting them from the payment of Court fees be it permanently or by deferring the payment, is set aside.
28. That brings me to the last question, viz., the correct order which this Court will be required to pass in the special facts and circumstances of this case. Petitioner’s learned counsel submitted that if the application for indigency fails and stands dismissed as is the order of this Court, then, this Court should also pass the consequential order dismissing the suit on the ground of non-payment of Court fees. Mr. Tarakram submitted that there is absolutely no shade of doubt about the fact that the sole purpose of the plaintiffs is to litigate, to harass and to pressurise the defendants into a position whereby they will be willing to buy peace even though the plaintiffs have no case. With this end in view, he demonstrates that even though they have unequivocally stated that they do not have the capacity to pay the Court fees that they will keep litigating on one fallacious or vexatious ground or the other and that judicial propriety requires that a full stop be put to these proceedings. Respondent’s learned counsel submitted that their clients have only adopted such proceedings as the law entitled them to and that this litigation is unjustified. Having carefully considered the position. I see no valid reason why the trial Court should be burdened any longer with this proceeding particularly in view of the orders that have been passed by this Court. To my mind, in fairness to both the parties the correct order would be to direct that the plaintiffs shall compute and deposit with the office of this Court the full amount of Court fees latest by 15-9-2003 and it is made clear to the parties at this stage itself that sufficient time is now being granted even though the High Court had settled the position 8 years back, to the plaintiffs to comply with the requirement of law if they so desire. This is a conditional order which prescribes that if the amount is so deposited in full by 15-9-2003 that then alone, will the suit survive. If the amount is not deposited by that date the suit shall stand dismissed without any further orders from either the High Court or the trial Court.
29. The CRP accordingly succeeds. No order as to costs. Before parting with this judgment it is necessary for me to record that I am deeply indebted to the learned counsel on both sides who have studied the case thoroughly, who have done their research and who have assisted the Court admirably.