MATHAI M. PAIKEDAYversusC.K. ANTONY

                          [2011] 7 S.C.R. 230


A                       MATHAI M. PAIKEDAY
                                     v.
                             C.K. ANTONY
                   (Civil Appeal No. 5493 of 2011)
                             JULY 11, 2011
B
               [G.S. SINGHVI AND H.L. DATTU, JJ.]

         Code of Civil Procedure, 1908:

c         0. 33, r.1, Explanation I, and 0.44. r.1 - Instituting of suit
    or appeal as an indigent person - Expression 'sufficient
    means' - Connotation of- A retired Dy. Conservator of Forest
    drawing monthly pension of Rs.10,5001- instituting appeals
    against money decrees with prayer for permitting him to
0   institute the appeals as an indigent person - Prayer allowed
    by High Court - HELD: The expression "sufficient means" in
    0. 33, r. 1 contemplates the atility or capacity of a person in
    the ordinary course to raise money by available lawful means
    to pay court fee - Financial assistance received from the
E   family members or close friends can be taken into account
    in order to determine whether a person is possessed of
    sufficient means or is indigent to pay requisite court fee - In
    the instant case, it was stated by the judgment-debtor before
    the High Court that his son was employed abroad - He did
    not deny that his son sends him money - He failed to
F   establish that the amount of money received from his son was
    not sufficient to pay the court fee - Non-production of bank
    account details amounts to suppression of fact and an
    adverse inference can be drawn against the judgment-debtor
    that he is receiving a substantial or sufficient amount of
G   money from his son - Therefore, the amount of:money
    received by the judgment-debtor from his son and by way of
    pension, amounts to 'sufficient means' to pay court fee which
    disentitles him to be an indigent person under 0. 33,r. 1 and
    0. 44 r. 1 - In the facts and circumstances of the case, the
H                                  230
       MATHAI M. PAIKEDAY v. C.K. ANTONY                   231


judgment-debtor cannot be declared as an indigent person          A
in order to prosecute the regular first appeals before the High
 Court - Impugned order of High Court set aside.

    The appellant filed two suits for recovery of money
against the respondent, a retired Deputy. Conserv.ator of         B
Forest drawing a pension of Rs. 10,5001-. The suits were
decreed. The respondent filed regular first appeals before
the High Court along with petitions to prosecute the said
appeals as an indigent person under 0. 44, r. 1 CPC. The
judgment-debtor was permitted to prosecute regular first          C
appeals as an indigent person.

    In the instant appeals filed by the plaintiff, the issue
before the Court was: whether the respondent was an
indigent person as not possessed of sufficient means to
pay the court fees and, consequently, entitled to avail the       D
benefits under 0. 44 of the Code of Civil Procedure, 1908.

     Allowing the appeals, the Court

     HELD: 1.1. The object and purpose of O. 33 and 0.
44 of the Code of Civil Procedure, 1908 are to enable a           E
person, who is ridden by poverty, or not possessed of
sufficient means to pay court fee, to seek justice. Order
33 and 0. 44 exempts such indigent person from paying
requisite court fee at the first instance and allows him to
institute suit or prosecute· appeal in forrna pauperis. [para     F
12] [237-B-C]

    A.A. Haja Muniuddin v. Indian .Railways, 1992 (3)
                =
Suppl. SCR 72 (1992) 4 SCC 736; Union Bank of India v.
                                                       =
Khader International Construction, 2001 (3) SCR 580 (2001)_ G
5 SCC 22; and R. V. Dev v. Chief Secretary, Govt. of Kera/a,
                    =
2007"(6) 1 SCR 886 (2007) 5 SCC 698 - referred to.

   Corpus Juris Secundum (20 C.J.S. Costs § 93); and
American Jurisprudence (20 Am. Jur. 2d Costs § 100) -
referred to.                                     ..~              H
    232      SUPREME COURT REPORTS             [2011] 7 S.C.R.


A      1.2. The indigent person, in terms of Explanation I to
  r.1 of 0. 33 CPC is one who is either not possessed of
  sufficient means to pay court fee when such fee is
  prescribed by law, or is not entitled to property worth one
  thousand rupees when such court t'ee is not prescribed.
B In both the cases, the property exempted from the
  attachment in execution of a decree and the subject-
  matter of the suit shall not be taken into account to
  calculate financial worth or ability of such indigent
  person. Moreover, the factors such as person's
c employment status and total_ income including retirement
  benefits in the form of pension, ownership of realizable
  unencumbered assets, and person's total indebtness and
  financial assistance received from the family member or
  close friends can be taken into account in order to
  determine whether a person is possessed of sufficient
0
  means or is indigent to pay requisite court fee. Therefore,
  the expression "sufficient means" in 0. 33, r.1 Code of
  Civil Procedure, 1908 contemplates the ability or capacity
  of a person in the ordinary course to raise money by
  available lawful means to pay court fee. [para 18] [239-H;
E 240-A-D]

         1.3. In the instant case, admittedly the respondent is
    a retired Deputy Conservator of Forest, and drawing a
    pension of Rs. 10,500/-. It was also stated by him in his
 F deposition before the High Court that his son is
    employed abroad. However, it is noteworthy to mention
    that respondent has never denied that his son sends him
    money. Furthermore, the respondent had failed to
  · establish that the amount of money received from his son
·G is~ not substantial or is insufficient to pay court fee by not
    producing passbook of his bank account. [para 19] [~40-
    E-G]
        1.4. Non-production of bank account transaction
    details, amounts to suppression of the facts and in view
H
        MATHAI M. PAIKEDAY v. C.K. ANTONY                233

of this, an adverse inference can be drawn against the         A
respondent that he is receiving a substantial or sufficient
amount of money from ·his son. Therefore, the amount of
money received by the respondent from his son and by
way of pension, amounts to 'sufficient means' to pay
court fee which disentitles him to be an indigent person       B
under 0. 33,r. 1 and 0. 44 r.1 CPC. [para 19] [240-G-H; 241-
A]
    1.5. In the facts and circumstances of the case, the
respondent cannot be declared as an indigent person in         C
order to prosecute the regular first appeals before the
High Court. The impugned final order of the High Court
dated 11.08.2008 is set aside. The respondent is granted
time to deposit the court fee if he desires to prosecute
regular first appeals filed before the High Court. [para 20]
~1~~                                                 I
                                                               0

                    Case Law Reference:
    1992 (3) Suppl. SCR 72        referred to    para 13
    2001 (3) SCR 580              referred to    para 14       E
    2007 (6) SCR 886              referred to    para 15
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5493 of 2011.
                                                               F
    From the Judgment & Order dated 11.8.2008 of the High
Court of Kerala at Emakulam in C.M.C.P.No. 60 of 2004.

                           WITH
C.A. No. 5494 of 2011                                          G

    Jawaharlal Gupta, Shishir Pinaki, Amit Singh for the
Appellant.

    Subramoniurn Prasad for the Respondent.
                                                               H
    234       SUPREME COURT REPORTS               [2011) 7 S.C.R.


A         The Judgment of the Court was delivered by

                              ORDER

          H.L. DATTU, J.

B         Delay condoned.

          1. Leave granted.

       2. These appeals, by special leave, are directed against
  the common final order passed by the High Court of Kerala at
C Ernakulam in C.M.C.P. Nos. 53 and 60 of 2004 dated
  11.08.2008, whereby the High Court has allowed the petitions
  and has permitted the respondent to prosecute the appeals as
  an indigent person.

D       3. The brief factual matrix relating to these appeals :- The
  appellant had fifed two suits for recovery of money against the
  respondent, who is a retired Deputy Conservator of Forest
  drawing a pension of '10,500/-. These suits were. decreed in
  favour of the appellant. Being aggrieved, the respondent had
E preferred Regular First Appeals before the High Court of Kerafa
  along with petitions to prosecute the said appeals as an
  indigent person under Order 44 Rufe 1 of the Code of Civil
  Procedure, 1908. The High Court of Kerafa, without holding any
  inquiry as contemplated under Order 33 Rule 1A of the Code
F of Civil Procedure, permitted the respondent to institute the said
  appeals as an indigent person, against which a special leave
  petition was preferred before this Court. This Court remanded
  the matter to the High Court for passing fresh orders after
  conducting an inquiry in accordance with Order 33 Rule 1A of
  the Code of Civil Procedure.
G
        4. Subsequently, the High Court after conducting the
  inquiry into the means and financial capacity of the respondent,
  has permitted the respondent to prosecute Regular First
  Appeals as an indigent person vide its order dated 11.08.2008.
H
        MATHAI M. PAIKEDAY v. C.K. ANTONY                   235
                  [H.L. DATTU, J.]
Aggrieved by the same, the appellant is before us in these         A
appeals.                                                ·

    5. The issue involved in the present appeals for our
consideration is: Whether the respondent is an indigent person
as not possessed of sufficient means to pay the court fees and,
                                                                   8
consequently, entitled to avail the benefits under Order 44 of
the Code of Civil Procedure.

    6. Shri. Jawahar Lal Gupta, learned senior counsel,
appears for the appellant and the respondent is represented
by Shri. Subramonium Prasad, learned counsel.                      C

      7. The learned senior counsel Shri. Jawahar Lal Gupta
submits that the respondent has admitted during the inquiry
before the High Court that he is a retired Government employee
and receives Rs. 10,500/- by way,of pension and also receives      0
money from his son who is employed in a foreign country. The
learned senior counsel further submits that the respondent had
failed to produce passbooks of his bank account in order to
deny the fact of receiving money from his son. In other words,
the failure of the respondent to produce bank accounts and         E
passbooks amounts to suppression of the fact of receiving
substantial amount of money from his son.The learned senior
counsel further argues that the respondent is having sufficient
means to pay court fees and is not entitled to prosecute the
Regular First Appeals before the High Court as an indigent
person in terms of O.rder 44 Rule 1 of the Code of Civil           F
Procedure.

     8. These arguments of the learned senior counsel for the
appellants were refuted by Shri. Subramanian Prasad, the
learned counsel for the respondent, who supported the              G
impugned final order of the High Court.

     9. Order 33 of the Code of Civil Procedure deals with suits
by indigent persons whereas Order 44. thereof deals with
appeals by indigent ·persons.
                                                                   H
    236        SUPREME COURT REPORTS                [2011] 7 S.C.R.

A     · 10. Order 33 Rule 1 of the Code of Civil Procedure
    provides for instituting of suits by indigent person, stating:

          "1. Suits may be instituted by indigent person-Subject to
          the following provisions, any suit may be instituted by an
          indigent person.
B
          Explanation 1.-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
c         and the subject-matter of the suit) to enable him to pay the
          fee prescribed by law 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
D         subject-matter of the suit.

          Explanation 11.-Any property which is acquired by a
          person after the presentation uf his application for
          permission to sue as an indigent person, and before the
E         decision of the application, shall be taken into account in
          considering the question whether or not the applicant is an
          indigent person.

          Explanation ///.-Where the plaintiff sues in a
          representative capacity, the question whether he is an
F
          indigent person shall be determined with reference to the
          means possessed by him in such capacity."

          11. Order 44 of Code of Civil Procedure provides for
    instituting an appeal as an indigent person. The provision reads
G

          "1. Who may appeal as an indigent person -Any person
          entitled to prefer an appeal, who is unable to pay the fee
          required for the memorandum of appeal, may present an
H         application accompanied by a memorandum of appeal,
        MATHAI M. PAIKEDAY v. C.K. ANTONY                       237
                  [H.L. DATTU, J.]

     and may be allowed to appeal as an indigent person,                A
     subject, in all matters, including the presentation of such
     application, to the provisions relating to suits by indigent
     person, in so far as those provisions are applicable."

     12. The object and purpose of Order 33 and Order 44 of             8
the Code of Civil Procedure are to enable a person, who is
ridden by poverty, or not possessed of sufficient means to pay
court fee, to seek justice. Order 33 and Order 44 of the Code
of Civil Procedure exempts such indigent person from paying
requisite court fee at the first instance and allows him to institute   C
suit or prosecute appeal in forma pauperis.

     13. In A.A Haja Muniuddin v. Indian Railways, (1992) 4
     SCC 736, this Court has observed:

     "5 .... Access to justice cannot be denied to an individual        o
     merely because he does not have the means to pay the
     prescribed fee."

    14. In Union Bank of India v. Khader International
Construction, (2001) 5 SCC 22, this Court has held:
                                                                        E
     "20. Order 33 CPC is an enabiing provision which allows
     filing of a suit by an indigent person without paying the court
     fee at the initial stage. If the plaintiff ultimately succeeds
      in the suit, the court would calculate the amount of court
      fee which would have been paid by the plaintiff if he had         F
      not been permitted to sue as an indigent person and that
     amount would be recoverable by the State from any party
     ordered by the decree to pay the same. It is further
     provided that when the suit is dismissed, then also the
     State would take steps to recover the court fee payable            G
     by the plaintiff and this court fee shall be a first charge on
   . the subject-matter of the suit. So there is only a provision
     for the deferred payment of the court fees and this
     benevolent provision is intended to help the poor litigants
     who are unable to pay the requisite court fee to file a suit       H
    238        SUPREME COURT REPORTS                    [2011] 7 S.C.R.


A         because of their poverty. Explanation I to Rule 1 Order 33
          states that an indigent person is one who is not possessed
          of sufficient amount (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 law
B         for the plaint in such suit. It is further provided that where
          no such fee is prescribed, if such person 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 he would be an indigent person."
c       15. In R. V. Dev v. Chief Secretary, Govt. of Kera/a, (2007)
    5 SCC 698, this Court has held:

          "8. Order 33 of the Code of Civil Procedure deals with
          suits by indigent persons whereas Order 44 thereof deals
D         with appeals by indigent persons. When an application is
          filed by a person said to be indigent, certain factors for
          considering as to whether he is so within the meaning of
          the said provision are required to be taken into
          consideration therefor. A person who is permitted to sue
E         as an indigent person is liable to pay the court fee which
          would have been paid by him if he was not permitted to
          sue in that capacity, if he fails in the suit at the trial or even
          without trial. Payment of court fee as the scheme suggests
          is merely deferred. It is not altogether wiped off."
F        16. The concept of indigent person has been discussed
    in Corpus Juris Secundum (20 C.J.S. Costs § 93) as following:

          "§ 93. What constitutes indigency: The right to sue in
          forma pauperis is restricted to indigent persons. A person
G         may proceed as poor person only after a court is satisfied
          that he or she is unable to prosecute the suit and pay the
          costs and expenses. A person is indigent if the payment
          of fees would deprive one of basic living expenses, or if
          the person is in a state of impoverishment that substantially
H         and effectively impairs or prevents the pursuit of a court
       MATHAI M. PAIKEDAY v. C.K. ANTONY                       239
                 [H.L. DATTU, J.]
    remedy. However, a person need not be destitute" Factors           A
    considered when determining if a litigant is indigent are
    similar to those considered in criminal cases, and include
    the party's employment status and income, including
    income from government sources such as Social Security
    and unemployment benefits, the ownership of                        B
    unencumbered assets, including real or personal property
    and money on deposit, the party's total indebtedness, and
    any financial assistance received from family or close
    friends. Not only personal liquid assets, but also alternative
    sources of money should be considered."                            c
    17. The eligibility of person to sue in forma pauperis has
been considered in American Jurisprudence (20 Am. Jur. 2d
Costs § 100) as thus:

     "§ 100. Eligibility to sue in form a pauperis; generally: The     D
     burden of establishing fndigency is on the defendant
     claiming indigent status, who must demonstrate not that he
     or she is entirely destitute and without funds, but that
     payments for counsel would place an undue hardship on
     his or her ability to provide the basic necessities of life for   E
     himself or herself and his or her family. Factors particularly
     relevant to the determination of whether a party to a civil
     proceeding is indigent are: (1) the party's employment
      status and income, including income from government
     sources such as social security and unemployment                  F
   . benefits; (~) the ownership of any unencumbered assets,
     including real or personal property and monies on deposit;
     and finally (3) the party's total indebtedness and any
     financial assistance received from family or close friends.
     Where two people are living together and functioning as           G
     a single economic unit, whether married, related, or
     otherwise, consideration of their combined financial assets
     may be warranted for the purposes of determining a party's
     indigency status in a civil proceeding."

    18. To sum up, the indigent person, in terms of explanation        H
    240       SUPREME COURT REPORTS                 (2011) 7 S.C.R.


A I to Rule 1 of Order 33 of the Code of Civil Procedure, is one
  who is either not possessed of sufficient means to pay court
  fee when such fee is prescribed by law, or is not entitled to
  property worth one thousand rupees when such court fee is not
  prescribed. In both the cases, the property exempted from the
B attachment in execution of a decree and the subject-matter of
  the suit shall not be taken into account to calculate financial worth
  or ability of such indige,nt person. Moreover, the factors such
  as person's employment status and total income including
  retirement benefits in the form of pension, ownership of
c realizable unencumbered assets, and person's total indebtness
  and financial assistance received from the family member or
  close friends can be taken into account in order to determine
  whether a person is possessed of sufficient means or indigent
  to pay requisite court fee. Therefore, the expression "sufficient
  means" in Order 33 Rule 1 of the Code of Civil Procedure
0
  contemplates the ability or capacity of a person in the ordinary
  course to raise money by available lawful means to pay court
  fee.

       19. Admittedly the respondent is a retired Deputy
E Conservator of Forest, Government of Kerala and drawing a
  pension of '10,500/-. It was also stated by him in his deposition
  before the High Court on 03.01.2008 that his son is employed
  abroad and does not regularly send him money and in response
  to a suggestion, whether his bank account discloses the amount
F of money sent by his son, he does not deny the suggestion.
  However, it is noteworthy to mention that respondent has never
  denied that his son sends him money. Furthermore, the
  respondent had failed to establish that the amount of money
  received from his son is not substantial or insufficient to pay
G court fee by not producing passbook of his bank account. In
  our considered opinion, non-production of bank account
  transaction details, amounts to suppression of the facts and in
  view of this, an adverse inference can be drawn against the
  respondent that he is receiving a substantial or sufficient amount
H of money from his son. Therefore, the amount of money
        MATHAI M. PAIKEDAY v. C.K. ANTONY                   241
                  [H.L. DATTU, J.)
received by the respondent from his son and by way of pension      A
amounts to a sufficient means to pay court fee which disentitles
him to be an indigent person under Order 33 Rule 1 and Order
44 Rule 1 of the Code of Civil Procedure.

     20. In the light of above discussion and facts and            8
circumstances of the present case, the respondent cannot be
declared as an indigent person in order to prosecute Regular
First Appeals before the High Court. Accordingly, the present
appeals are allowed and the impugned final order of the High
Court dated 11.08.2008 is set aside. However, the respondent       C
is granted 45 days time from today to deposit the court fee if
he desires to prosecute Regular First Appeals filed before the
High Court. Costs are made easy.

RP.                                          Appeals allowed.