ORDER
S. Jagadeesan, J.
1. The petitioner has filed this revision against the order of the lower court in P.O.P. No. 20 of 1993, permitting the respondent to file appeal as indigent person.
2. The petitioner has filed the suit O.S. No. 63 of 1991 for recovery of a sum of Rs. 30,000 with interest against the respondent and the suit has been decreed. The respondent intends to file an appeal against the said decree made in O.S. No. 63 of 1991 and the court-fee payable by him is Rs 1,842.50. The respondent is a poor man depending upon the very meagre income derived from the tailoring business. He had no means to pay the court-fees. The petitioner herein filed counteraffidavit in that O.P. stating that the respondent is earning Rs. 200 per day, and owns lands to an extent of 31 cents of coconut thope, and that from the said thope, the respondent is getting an income of Rs. 1,000 per month. The nondisclosure of the land in the schedule of assets by the respondent would disentitle him the relief sought for. The court below called for the report from revenue authorities and after perusing the same. the respondent herein was declared as an indigent person.
3. The contention of the learned Counsel for the petitioner is that the respondent is owning a land about 31 cents. The Tahsildar, after enquiry has submitted a report wherein it is stated that the respondent is getting a nominal income of Rs. 190 per year. Further, the Tahsildar has stated that the respondent is getting an income of Rs. 30 per day from his tailoring and the annual income of the respondent is Rs. 10,000. The court below has come to the conclusion that the respondent is an indigent person on the ground that his daily income is Rs. 25 of which, the daily expenses and the expenses for children’s education are deducted, the balance may not be much. Further, the children of the respondent are studying in the English convent. The reasoning of the lower court is not correct because the vital aspects have been left out.
4. On the contrary learned Counsel for the respondent contended that the petitioner has no cause in the matter and he cannot be considered to be an aggrieved person and the civil revision petition itself is not maintainable.
5. Order 44, Rule 1 of Code of Civil Procedure empowers any person entitled to prefer an appeal, who is unable to pay the court-fee required for the memorandum of appeal, to present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person. Rule 3 provides for the enquiry as to whether applicant is an indigent person. Only to complete the enquiry a notice is being ordered to the Government Pleader to find out the assets of the person who seeks leave of the court to file an appeal as an indigent person. The report of the Government Pleader reveals that the respondent is owning land and he is deriving the meagre income. However, the ownership of the land by the respondent do not find any place in the assets furnished by the respondent. The nondisclosure of the full particulars of the assets would entitle the petition being dismissed. There is no explanation on the part of the respondent as to why he has not mentioned the land in the affidavit of the assets filed by him, The fact that this Court has held in P.V. Chandrasekaran v. Thirumalai Chit Funds , that where the petitioner failed to mention certain assets possessed by him in the affidavit filed in support of the petition, the petition is liable to be dismissed.
6. Order 33, Rule 2 of Code of Civil Procedure envisages that 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 annexed thereto, and it Shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
7. The lower court has proceeded on the basis as to whether the petitioner is having an excess income to pay the court-fee or not. The question to be considered is whether the respondent has the capacity to pay the court-fee or not. It has been held in a recent judgment reported in O.P. Neelam Hosier Works and Anr. v. State Bank of India and Ors. , as follows:
It is wellsettled that the provisions of Order 33, Rule 1, C.P.C. have been enacted to enable poor persons to seek justice by filing suits or appeals without court-fee and in this context, the sufficient means would not be sufficient property and includes such means on which the bare living of the plaintiff or the appellant and the members of his family is dependent. In fact, what is intended is capacity to raise funds by normal and available lawful means and not by any means whatsoever, improper or illegal. It cannot be the purpose of this legislation that the indigent person should first deprive himself of the means of livelihood or alienate all his assets and seek justice in penury. (Please see: A. Prabhakaran Nair v. K.P. Neelakantan Pillai and Rambhai Punjabhai Vinchiya v. The Gujarat State Road Transport Corporation, Ahmedabad .
The expenses has nothing to do with the capacity of the respondent to pay court-fee because it is an admitted fact that the respondent is getting an income of Rs. 750 per month and some income from the land. The yearly income as per the report of the Tahsildar is nearly Rs. 11,000. The court-fee comes to Rs. 1,842. The respondent when getting an income of Rs. 11,000 per year, cannot be said to be indigent person on the ground he has no capacity to pay the court-fee. From out of the income, the respondent can pay court-fees by reducing his expenses or raising funds.
8. Equally when the respondent has got the lands, it is not his case that the said lands are involved in any litigation. When the piece of land is free from encumbrance it is open to the respondent to raise loan by way of mortgage and can pay the required court-fee.
9. Learned Counsel for the respondent contended that payment of court-fee is only for the State and as such the petitioner cannot be said to be an aggrieved person. He relied upon the Judgment reported in Sri Rathnavarmaraja v. Smt. Vimala (1962)M. LJ. (S.C.) 36. The facts of that case has no application for the present one. In the case before the Supreme Court, the respondent raised question with regard to the adequacy of the court-fees paid by the plaintiff. There, the Supreme Court has held that they fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the state.
10. Yet another judgment relied upon by the learned Counsel for the respondent is reported in Ilayath Begum and Ors. v. Sahib Basha and Anr. . In this case also the judgment did not deal with the right of the person to challenge the order of the court where the court permitted the party to sue as an indigent person. He also relied upon the judgment reported in Kalimuthu Servai and Ors. v. Govindaswami Servai and Anr. (1960) 2 M.L.J. 31 : l. L.R. 1958 Mad. 660. In this case also learned judge dealt with on merits and ultimately found that it is the State which is mainly interested in the payment of the court-fee who are able to do so. As such it is primarily for the State to challenge the correctness of such orders granting leave to sue in forma pauperis. It is not held that the revision by a private party is not maintainable.
11. Learned Counsel also relied upon the judgment reported in M.L. Sethi v. R.P. Kapur , wherein it has been held as follows:
We venture to think that the High Court was labouring under a stake when it said that the enquiry to the question whether the respondent was a pauper was exclusively a matter between him and the State Government and that the appellant was not interested in establishing that the respondent was not a pauper. Order 33, Rule 6 provides that if the Court does not reject the application under Rule 5, the court shall fix a day of which at least 10 days’ notice shall be given to the opposite party and the Government Pleader for receiving such evidence as the applicant may adduce in proof of pauperism and not hearing any evidence in disproof thereof. Under Order 33, Rule 9, it is open to the court on the application of the defendant to dispauper the plaintiff on the grounds specified therein, one of them being that his means are such that he ought not to continue to sue as a pauper. An immunity from litigation unless the requisite court-fee is paid by the plaintiff is a valuable right for the defendant. And does it not follow as a corollary that the proceedings to establish that the applicantplaintiff is a pauper, which will take away that immunity, is a proceedings in which the defendant is vitally interested?
To what purpose does Order 33, Rule 6 confer the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is not a pauper unless the opposite party is interested in the question and entitled to avail himself of all the normal procedure to establish it? We can think of no reason why if the procedure for discovery is applicable to proceeding under Order 33, the appellant should not be entitled to avail himself of it. We also do not think that there is any point in the criticism of the High Court that the order for discovery was vague. The first item in the order was in respect of the documents relating to the bank accounts of the respondent from March 1, 1963, to the date of the affidavit. The second item related to documents in respect of the immovable properties held by him during the same period and the third item was in respect of documents relating to the personal accounts maintained by him for the same period. The order was as specific as it could be.
… Section 115 empowers the High Court to satisfy itself on three matters: (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the court ought to exercise jurisdiction, and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on those those matters, if has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law.
… The provisions of Section 115 of Code have been examined by judicial decisions of several occasions. When exercising its jurisdiction” under Section 115 it is not competent to the High court to correct errors of fact however bad they may be, or even errors of law unless the said errors have relation to the jurisdiction of the court to try dispute itself. As Clauses (a), (b) and (c) of Section 115 indicate, it is only in case where the subordinate court has exercised a jurisdiction not vested in its law, or has failed to exercise a jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction….
On the basis of the above judgment, learned Counsel contended that the lower court had exercised its jurisdiction in a proper manner and there is no question of error of jurisdiction or want of jurisdiction by the lower appellate court, in disposal of the application. Hence, this Court cannot interfere under Section 115 of Code of Civil Procedure.
12. So far as this judgment is concerned, if it is strictly to be followed then no revision can be entertained under Section 115 of Code of Civil Procedure. That is seen from paragraphs 11 and 12 of the same judgment. Learned Judges have discussed about ‘jurisdiction’ and finally held that if the finding is vitiated by an error of law, then the question of jurisdiction is involved. As already pointed out, the respondent did not disclose all the assets as required under the provisions of Code of Civil Procedure. The omission to mention some of the assets or even a single asset, may lead to the dismissal of the application. The lower court totally failed to consider this aspect of the norms and hence, the order of the court below is clearly contrary to law.
13. Hence, this Court is entitled to interfere with the order of the court below, under Section 115 of the Code of Civil Procedure. For all the above reasons, the order of the court below cannot be sustained and accordingly, the civil revision is allowed. Consequently, no further order is necessary in C.M.P. No. 12558 of 1995.
