HON’BLE SRI JUSTICE N.V. RAMANA AND HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.No. 358 of 2011 Date: 01 -07-2011 Between: Sarapu V. Janardhan …………. Appellant And M/s. Vijetha Polymers Limited Company, and others …………. Respondents HON’BLE SRI JUSTICE N.V. RAMANA AND HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.No. 358 of 2011 JUDGMENT: (Per Hon’ble Sri Justice K.S. Appa Rao) Being aggrieved by the order dated 14-07-2010 passed in O.P.No.5 of 2010 on the file of the IX Additional District and Sessions Judge at Kamareddy, the present Civil Miscellaneous Appeal is filed. 2. The appellants herein are the petitioners in O.P.No.5 of 2010. They filed the O.P. to declare them as paupers. The trial Court, after evaluating the evidence of the appellant, dismissed the petition on the ground that the petitioners cannot be accepted as paupers and cannot be declared as such. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed. 3. The learned counsel for the appellants-petitioners mainly urged that the Court below has committed error in dismissing the petition observing that the petitioners are the directors of the company and they are well off. He further urged that the Court below ought to have seen that the petitioners have no business and no source of income except respondent No.1 company whose properties are sought to be attached and sold and therefore, the Court below ought to have permitted the petitioners to file the suit in the form of paupers at present and at any rate if the petitioners succeed in the suit, the decree will be passed by collecting the required Court fee. He further contended that the Court below erroneously dismissed the petition without granting any time to pay the court fee. 4. Now, the point arises for consideration is whether the order of the Court below is sustainable? 5. As seen from the cause title, petitioners 1 to 3 are the residents of Nizamabad. The first petitioner is the Director of Vijeta Polymers Limited Company, Kamareddy, the second petitioner is a Registered Medical Practitioner and also doing business and the third petitioner is having household business. The petition is filed under Order 33 Rules 1, 1A, 2 and 3 of C.P.C. seeking declaration of the petitioners as paupers. It is the case of the petitioners that they are intending to file the suit for declaration of the sale of property of M/s. Vijeta Polymers Limited Company, Kamareddy, by APSFC in favour of respondent No.13 i.e., Balraj Goud, as null and void, and to set aside the sale apart from quashing the same; to direct the APSFC i.e., respondent No.3 to confirm the sale of property of respondent No.1 in favour of petitioner No.1; to declare that the petitioners are not jointly and severally liable to pay the dues and debts of respondent No.1 and further to declare the properties of the petitioners as not liable for attachment and sale for the debts of respondent No.1 etc. 6. In order to claim the relief for filing the suit as paupers, the petitioners should first establish that they have no income of their own and as such they can be declared as paupers under Order 33 Rules 1, 1A, 2 and 3 of C.P.C. In the Court below, the petitioners have adduced oral evidence. As per the relief, the petitioners need to pay the total Court fee of Rs.27,163/-. It is the contention of the petitioners that the property in dispute is under equitable mortgage with respondent No.5, i.e., SBH, Kamareddy, and therefore, they may be exempted from payment of the Court fee. Sole witness was examined as PW-1 and during the course of cross-examination, he has admitted that they have agricultural lands in Sy.Nos.6, 7, 8a, 8b, 9a, 9b, 10a, 21, 22a and 22e situated at Keshapur village in the name of respondent No.2 who is also seeking exemption from payment of Court fee by way of declaration as pauper. 7. In view of the admission of PW-1 about the ownership of the agricultural lands, it is for the petitioners to prove that they are not getting any income therefrom. Admittedly the second respondent is a Registered Medical Practitioner at Nizamabad as seen from the cause title. It is further noted that he is also a businessman. There is no iota of evidence to show that he is not getting any income in his profession. He is aged about 72 years and resident of H.No.1-4-51, Gol Hanuman, Nizamabad. Except examining the petitioner No.1 as PW-1, neither the other petitioners nor any other person were examined in support of the contention that they have no means of livelihood. The petitioners also failed to adduce any supporting evidence through any official witnesses much less revenue authorities to show that the lands possessed by them are not yielding any income, and no documentary evidence is also adduced on that score. Admittedly the petitioners are connected with the business activities of respondent No.1, i.e. M/s. Vijetha Polymers Limited Company, Kamareddy, by doing business in rigid P.V.C. Pipes and Bore well Casing Pipes. One cannot believe that the petitioners have no capacity to pay the Court fee much less when the claimed relief is to set aside the order passed against them. Therefore, in the absence of any supporting evidence and in view of the admission of PW-1 in his evidence that they owned agricultural lands, it cannot be accepted that the petitioners are paupers and unable to pay the Court fee and hence, they cannot be declared as such. The Court below also discussed the evidence of PW-1 on that score and came to the correct conclusion while dismissing the petition. Therefore, we see no grounds to interfere with the finding of the Court below. Accordingly, the order of the Court below is sustainable. 8. In the result, the Civil Miscellaneous Appeal is dismissed. No order as to costs. 9. The learned counsel for the appellant submits that in view of the dismissal of the appeal, the appellant may be granted time to pay the Court fee to prosecute the suit. 10. The appellant is, accordingly, granted time to pay the Court fee within fifteen days from the date of receipt of a copy of this order. _________________ N.V. RAMANA, J __________________ K.S. APPA RAO, J Date: 01-07-2011 YCR