FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 4646 OF 2009 IN FIRST APPEAL (ST.) NO.5956 OF 2009 ________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | ________________________________________________________ This application is for permission to prosecute first appeal as an indigent persons and for directing the Registrar to register this appeal. 2 By order dated 25th August, 2009 this Court (Coram: R.K. Deshpande, J) directed the Collector, Jalgaon to carry out an inquiry in respect of the financial position of the applicants and submit report. Accordingly, the Special Land Acquisition Officer, Jalgaon has submitted report under covering letter dated 23rd November, 2009 wherein it is stated that the income of the applicants is below Rs.20,000/- per annum and they have no other source of income. It is further stated that their names are not included in the list of persons below poverty line. There are no agricultural lands standing in their names. 3 Shri Bhokarikar, learned Counsel for the applicants invited my attention to the provisions of Order XXXIII Rule 1 of the Code of Civil Procedure, as applicable to Bombay, which read thus: “1. Suits may be instituted by indigent person.- Subject to the following provisions, any suit may be instituted by an indigent person. (a) ....... (b) ...... Explanation:.- A person shall be deemed to be an indigent person if he is not possessed of means exceeding rupees one thousand in value, or where he is possessed of means exceeding one thousand rupees in value, the same are not sufficient to enable him to pay fees prescribed by law for the plaint. For the purposes of this Explanation the means which a person is possessed of shall be deemed not to include property exempt from attachment in execution of a decree and the subject-matter of the plaint.” 4 He further submitted that the appeal is directed against the judgment and award dated 18th February, 2006 passed by the learned Joint C.J.S.D., Jalgaon in LAR No. 1190/2005 (Old LAR No.53/2003). The said L.A.R. was filed by Digambar Pandharinath Mahajan, predecessor-in-title of the applicants and his brother Suresh for enhancement of compensation. Before the learned trial Judge on the application made by Digambar, Suresh gave no objection for granting the amount from enhanced compensation to the extent of 1/10th share. The learned trial Judge however, declined to grant compensation in the name of Digambar on the ground that his name is not reflected in 7/12 extract. He further invited my attention to the decision of the Apex Court in the case of Omprakash , 2006 AIR SCW 2779. In that case, the Apex Court, after hearing the learned Counsel for the parties, suggested the parties to explore the possibility of settling the matter amicably by sharing the amount of compensation. Pursuant to that, the parties entered into compromise memo signed by the respective Counsel and the Court disposed of the appeal by recording the compromise arrived at between the parties. He submitted that even in the instant case, brother of Digambar gave no objection for paying compensation to Digambar to the extent of his 1/10th share in the acquired property. The learned trial Judge consequently, ought to have awarded compensation to Digambar to the extent of his share of 1/10th of the acquired property. He further submitted that in case the applicants ultimately succeed in the appeal, the amount of court fees payable in the appeal may be deducted from the amount of compensation that will be payable to the applicants. In case, the applicants fail in the appeal, they are ready and willing to give personal undertaking that in the event they fail in the appeal, they will pay requisite court fees within four weeks from disposal of the appeal. 5 In view of this, four week’s time is granted to file an undertaking in this Court by the applicants to the effect that in the event they fail in the appeal, they will pay the amount of Court fees within four weeks from disposal of the appeal and that, in the event they succeed in the appeal, they will have no objection for deducting the amount of court fees from the amount payable to them under the award. 6 In view of the above, civil application is allowed in terms of prayer clause (B) subject to the condition that the applicants submit undertaking within four weeks from today to the above effect. In case, the applicants fail to furnish undertaking within four weeks, the application shall stand dismissed without further reference to the Court. (R.G. KETKAR, J.) 11.12.2009. PLK/*