ORDER
P.K. Tripathy, J.
1. Certified copies of the depositions of the petitioner and opposite party No. 1 have been filed by the petitioner.
2. Heard learned counsel for the petitioner and this civil revision is disposed of by dismissing the same at the stage of hearing on admission for the reasons recorded below.
3. A decree for money has been passed against the petitioner by the Civil judge (Senior Division), Deogarh in Money Suit No. 1 of 1994. As against that he has preferred an appeal under Order 41 of the Code of Civil Procedure, 1908 (in short ‘the Code’). As noted in the impugned order petitioner is to pay a court-fee of Rs. 3,021/- on the appeal memo. Instead of making payment of such court-fees petitioner applied for exemption as an indigent person. Such application filed under Order 44, Rule 1 of the Code was registered as Misc. Case No. 10/1 of 1998-2000 and learned Addl. District Judge, Deogarh after conducting the inquiry in accordance with Rule 3 of Order 44 of the Code, on 29.11.2002, rejected that application and directed the petitioner to make payment of the Court-fees. He challenges that order in this application under Section 115 of the Code.
4. Learned Addl. District Judge has noted in the impugned order that :
“It is crystal clear from the evidence of both P.W. 1 and O.P.W. 1 that the petitioner is a contractor maintaining telephone, motor cycle and costly grey hound black
dog apart from T.V. etc. He was also found to have put on a gold chain and costly wrist watch and good dress at the time of enquiry In view of the facts and circumstances as discussed above by no stretch of imagination, it can be said that the petitioner is an indigent person unable to pay the required Court fees.”
5. At the stage of hearing on admission on 3.4.2003, learned counsel for the petitioner disputed to the correctness of the factual finding as noted above. Thus, as per the direction of this Court, he has filed the certified copy of the depositions of the petitioner as P.W. No. 1 and the opposite party No. 1 as O.P.W. No. 1. In the deposition of P. W. No. 1, it has been noted that:
“4. ***
It is a fact that a sum of Rs. 75,000/- is outstanding against me from Prime Minister Rojagar Jojana, UCo, Bank, Deogarh Branch. The witness has put on a gold chain weighing more than a tola and saying that he has it from others. (The witness first denied to have put on a gold chain; but subsequently when the counsel for the O.P. insisted he shown the gold chain before the Court) I have a phone in my name bearing No. 26752. It is not a fact that I have BPL T.V. I have put on a watch (wrist watch) gifted to me by my father-in-law….”
6. In the evidence of O.P.W. No. 1, he has stated that :
“…He is a contractor. I have filed the certified copy of the registered gift deed of my father executed in favour of the petitioner. It is not a fact that he has sold the same at any time for his medical treatment. Apart from his family expenditure, the petitioner used to spend about Rs. 100/- per day for himself. He is maintained a grey-hound black dog. Suzuke Samarai motor cycle and the chain which the petitioner is put on belonged to him.
2. Cross-examination by the petitioner:
“I do not go to old house where my father lives, The petitioner is living there. He earns his livelihood from contractory I had given him money at times. He used to ask for money for me. Since he is close to my father I used to give him money. On many occasion I have helped him to get work-order, from R. D. Department and Municipality. I am helping him since long. I have direct knowledge about the means and source of income of the petitioner.”
The above quoted deposition of the petitioner and the opposite party No. 1, absence of even denial suggestion to the evidence of O.P.W. No. 1 in examination in-chief and the observations on the petitioner which the Court made at the time of recording his depositions are not shown to be untrue or false or contrary to the reality. Rule 1 in Order 44 of the Code provides that a person who is unable to pay the required Court-fee on the memorandum of appeal may be permitted to do so as an indigent person. In view of the above noted evidence which came on record in course of the inquiry under Rule 3 of Order 44 of the Code, this Court does not find any bonafide in the claim of the petitioner that he is an indigent person. In that respect, the factual finding recorded by the Court below is also not found to be suffering from perversity. The evidence on record on the other hand sufficiently proves that petitioner is a capable person to make payment of the required court-fees. Under such circumstance, in the absence of any illegality, perversity or jurisdictional error in the impugned order, this Court does not find any reason to interfere with the same.
As noted above, the Civil Revision stand dismissed. Keeping in view the conduct of the petitioner to seek for exemption by resorting to falsehood, this Court directs the petitioner to pay a cost of Rs. 1,000/- (one thousand) in addition to the Court-fees which he is required to pay. That shall be a condition precedent for admission of the appeal. If the cost shall be deposited that shall stand forfeited to the State.