CR No. 3060 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 3060 of 2005 Date of Decision: 11.8.2009 Santa ....Petitioner. Versus Jarnail Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Ramesh Sharma, Advocate for the petitioner. None for the respondent. AJAY KUMAR MITTAL, J. The defendant-petitioner feeling aggrieved against the order dated 9.5.2005 passed by the lower appellate court, whereby his application for permission to file the appeal before the lower appellate court as indigent person was dismissed, has approached this Court by way of instant revision petition under Article 227 of the Constitution of India. Briefly stated, the facts of the case are that the plaintiff- respondent filed a suit against the defendant-petitioner for possession by way of specific performance of the agreement to sell dated 13.8.1999 in respect of the plot/taur measuring 15 marlas together with the construction, power connection and water pump etc. installed CR No. 3060 of 2005 -2- thereon, situated in the abadi area of village Kili, Tehsil Shahkot, District Jalandhar. The said suit was decreed by the trial court vide judgment and decree dated 2.9.2004. The defendant-petitioner filed an appeal before the lower appellate court against the judgment and decree of the trial court. Along with the appeal, the defendant filed an application under Order 44 Rule 1 of the Code of Civil Procedure (for short “the Code”) for allowing him to file the appeal as an indigent person. It was averred in the application that the defendant-petitioner did not have sufficient means to pay the court fee required on the memorandum of appeal. It was further averred that except for the house which is subject matter of the dispute, the defendant-petitioner did not own any other property. In the report submitted by the Collector, it was stated that the defendant-petitioner owned a house situated within the Lal Lakir of the village in the land measuring 16 marlas, i.e. the property in dispute. However, the lower appellate court dismissed the said application holding that in the aforesaid house, the defendant-petitioner was residing along with his three sons and that he had engaged two counsel to defend himself in the appeal. It was presumed by the lower appellate court that the defendant-petitioner would have sufficient means to pay the court fee. Being not satisfied with the order dated 9.5.2009 passed by the lower appellate court, the defendant-petitioner has approached this Court by way of instant revision petition. Notice of this petition was issued to the respondent. In spite of having been served, no one has put in appearance on behalf of the respondent. Learned counsel for the petitioner submitted that the CR No. 3060 of 2005 -3- defendant-petitioner was not having any other property except the residential house which is subject matter of the dispute. The said house is also exempt from attachment under Section 60 (1) (ccc) of the Code as well. He further submitted that the said property cannot be taken into consideration to ascertain his financial status as to whether the petitioner is an indigent person or not within the meaning of Order 44 Rule 1 of the Code. Once, the said house was excluded from consideration in the list of properties owned by the petitioner, there is nothing on record to show that the petitioner owned any other property on the basis of which the application to file the appeal as an indigent person could have been declined. Learned counsel also submitted that the grounds on the basis of which, the application has been rejected are legally unsustainable and by placing reliance on the judgments rendered in State of Haryana and another v. Baldev Raj and another, 2008 (4) CCC 470 (P&H) and Johnson v. Ouseph, 2007 (2) CCC 163 (Kerala), it was contended that the appeal should have been entertained on behalf of the petitioner as an indigent person. As per office report, the respondent had been served. No one has appeared on his behalf to oppose the prayer made in this revision petition. I have heard the learned counsel for the petitioner and perused the file with his assistance. Order 44 Rules 1 and 3 of the Code reads thus:- “1. Who may appeal as an indigent person.- (1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum CR No. 3060 of 2005 -4- of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suits by indigent persons, in so far as those provisions are applicable. 2. XX XX XX 3. Inquiry as to whether applicant is an indigent person.- (1) Where an applicant, referred to in rule 1, was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from; but if the Government pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of that Court. (2) Where the applicant, referred to in rule 11, is alleged to have become an indigent person since the date of the decree appealed from, the inquiry into the question whether or not he is an CR No. 3060 of 2005 -5- indigent person shall be made by the Appellate Court, or, under the orders of the Appellate Court, by an officer of that Court unless the Appellate Court considers it necessary in the circumstances of the case that the inquiry should be held by the Court from whose decision the appeal is preferred.” According to sub-section (1), a person is entitled to prefer an appeal as an indigent person who is unable to pay the court fee which is required to be affixed on the memorandum of appeal. Under sub-rule (3), the Court can get the matter enquired to ascertain as to whether the applicant is an indigent person or not. This Court in Baldev Raj's case (supra) while considering similar issue had observed as under:- “4. A perusal of the aforementioned Order would reveal that a person could be considered as an indigent person if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit. For determining the issue concerning 'indigent person' the property which is exempt from attachment and the subject of the suit is not to be taken into consideration. The aforementioned position has been clarified further by Section 60 (1)(c) of the Code, which reads thus:- '60. Property liable to attachment and sale in execution of decree.- (1) The following property is liable to attachment, and sale in execution of a CR No. 3060 of 2005 -6- decree, namely, lands houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf. Provided that the following particulars shall not be liable to such attachment or sale, namely:- (a) XX XX XX (b) XX XX XX (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agrculturist or a labourer or a domestic servant and occupied by him; XX XX XX' 5. The aforementioned provision is self-explanatory and a perusal thereof shows that the houses and other buildings with the materials and the sites CR No. 3060 of 2005 -7- thereof, are not liable to attachment or sale in execution of a decree. Therefore, the aforementioned property owned by the applicant- respondent No.1 can also not be taken into account for determining the issue as to whether he is an indigent person. The error is, thus, apparent on the face of the order. Therefore, the review application deserves to be accepted.” Similar view has been taken by the Kerala High Court in Johnson's case (supra). It is undisputed that the petitioner owned only one residential house which is subject matter in dispute. Further on enquiry, the said fact stood confirmed on the basis of report submitted by the Collector. The residential house being subject matter in dispute and exempt from attachment could not be taken into consideration for the petitioner to prefer appeal as an indigent person. The lower appellate court has not recorded any rational finding with regard to the property owned by the defendant-petitioner, on the basis of which his application to file appeal as an indigent person could be declined. Moreover, the lower appellate court has drawn presumptions that the petitioner would be possessed with sufficient means to pay the requisite court fee without there being any material on record. Accordingly, the instant revision petition is allowed and the order dated 9.5.2005 passed by the lower appellate court declining the prayer of the defendant-petitioner to file the appeal as an indigent person is set aside and he is permitted to file the appeal as an indigent person. CR No. 3060 of 2005 -8- Since the matter relates to the year 2005, the lower appellate court is directed to decide the appeal expeditiously preferably within six months from the date of receipt of certified copy of the order after issuing notice to the plaintiff-respondent. August 11, 2009 (AJAY KUMAR MITTAL) gbs JUDGE