Civil Revision No. 5801 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 5801 of 2011 Date of Decision: September 22, 2011 Gurtez Dass @ Gurtez Singh .......Petitioner Versus Vijay Kumar .......Respondent CORAM:- HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr.Gaurav Sharma, Advocate for the petitioner. <><><> AJAY KUMAR MITTAL, J. The defendant-petitioner has approached this Court under Article 227 of the Constitution of India with a prayer that order dated 1.9.2011 passed by the learned Additional District Judge, Barnala, is legally not sustainable as the application under Order 44 Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'CPC') filed by him, has been erroneously dismissed. 2. Briefly, the facts are that the plaintiff-respondent filed a suit for specific performance of agreement to sell dated 8.6.2005 for sale of 25 Biswas of land. The trial Court, on appreciation of evidence, decreed the suit. The defendant-petitioner challenged the decree of the trial Court by filing an appeal in which an application under Order 44 rule 1 CPC was filed by him seeking permission of the appellate Court to file the appeal as an indigent person. Civil Revision No. 5801 of 2011 2 3. Learned counsel for the petitioner submitted that the defendant- petitioner had no property or moveable assets where from he could arrange money to affix the requisite court fee. He argued that the defendant- petitioner being an indigent person, the application filed by him ought to have been allowed by the appellate Court. 4. After hearing the learned counsel for the petitioner and perusing the record of the case, I do not find any merit in the submission of the learned counsel for the petitioner. 5. Order 44 rule 1 CPC 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 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;” 6. The aforesaid rule provides that a person, who is indigent, is entitled to prefer an appeal where he is unable to pay the requisite court fee on the memorandum of appeal by claiming himself to be an indigent person. 7. The lower appellate Court while rejecting the application of the petitioner had come to the conclusion that the petitioner was owning sufficient land which had been sold by him from time to time, and in such a situation, he could not be treated to be an indigent person. The finding recorded by the lower appellate Court reads as under: “Gurtez Dass (AW1) appellant/applicant in his cross- examination has admitted that as per jama bandi for the year 2004-05 he has been shown as owner of khasra No.65/6/2, 4 Civil Revision No. 5801 of 2011 3 kanals 8 marlas to the extent of ½ share but said land has been sold by him. He has also admitted his ownership in khewat khatauni No.606/850 and 606/851 to the extent of ½ share but again voluntarily stated that he had sold the same. He has also admitted as per sale deed mark B they were owners of ½ share out of land measuring 41 kanals 5 marlas but they have sold the same. He has admitted that they all three brothers were owners of 20 kanals of the land. He has admitted that he is in possession of the sale deed regarding sale of the land but he had not produced the same on the file. Darshan Singh (RW2) and Vijay Kumar, respondent (RW3) have also placed on the record copy of agreement Ex.R1 executed by appellant/applicant for sale of certain land @ Rs.16,000/- per biswa. In the revenue record placed on the file and as per agreement Ex.R1 he has sold certain property and is in possession of the sale proceed of the same. He had not placed on record any document that he had sold his entire share as depicted in the revenue record placed on the record. Therefore, I hold that appellant/applicant has sufficient source of income and is owner of the agricultural land to affix the requisite court fee and as such this issue is decided against the applicant/appellant and in favour of the respondent.” 8. The aforesaid finding has not been shown to be perverse or erroneous in any manner by the learned counsel for the petitioner. Accordingly, I find no merit in the revision petition and the same is dismissed. ( AJAY KUMAR MITTAL ) September 22, 2011 JUDGE SRM