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Sanyukta Vs. Prem Kumar Madan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 380 of 1973
Judge
Reported inAIR1974P& H203
ActsHindu Marriage Act, 1955 - Sections 9 and 10; Code of Civil Procedure (CPC), 1908 - Order 33, Rules 1 and 2
AppellantSanyukta
RespondentPrem Kumar Madan and ors.
Cases ReferredDyal Kaur v. Ujagar Singh
Excerpt:
.....passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - taking all these facts into consideration and also the circumstance that the collector had not recommended the case of the wife for permission to sue as a pauper, the learned judge dismissed her application on 7th march, 1973, and she was allowed one month's time to pay the court-fee on the plaint......of the act, again in delhi. it appears that the said petition was still pending, when the present pauper application was filed on 14th december, 1971, in karnal. according to the wife, she was not in possession of any movable or immovable property and was unable to pay the court-fee and had, therefore, to file the said application.3. it was contested by the husband, whose case was that his wife was not a pauper and she was possessed of sufficient means to pay the court-fee. she had intentionally not brought all the facts before the court. a sum of rs. 3,480/- was deposited by him for her and it was lying in the court of the subordinate judge. 1st class, at delhi. a cheque for rs. 2,480/- was actually issued to her, which, according to the husband, she must have recovered and the rest of.....
Judgment:
ORDER

1. This is a revision petition filed by Shrimati Sanyukta wife of Prem Kumar Madan against the order of the trial Judge dismissing her application under O. 33, Rule 2, Code of Civil Procedure, seeking permission to sue her husband as a pauper for the recovery of the articles of her dowry, which she had mentioned in the Schedule attached with the plaint. In the alternative, she claimed Rs. 26, 090/- as the value of those articles.

2. The brief facts relevant for determining this petition are these. The parties were married in May 1966, at Karnal. Both of them lived together for about three years and then difference arose between them, with the result that according to her, she was turned out by her husband and started living with her father, who was an Advocate, at Karnal. In September, 1969, the husband filed a petition against her in Delhi for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. It remained pending for about two years and, thereafter, it was withdrawn. In September/October 1971, he brought a petition against her for judicial separation under Section 10 of the Act, again in Delhi. It appears that the said petition was still pending, when the present pauper application was filed on 14th December, 1971, in Karnal. According to the wife, she was not in possession of any movable or immovable property and was unable to pay the court-fee and had, therefore, to file the said application.

3. It was contested by the husband, whose case was that his wife was not a pauper and she was possessed of sufficient means to pay the court-fee. She had intentionally not brought all the facts before the Court. A sum of Rs. 3,480/- was deposited by him for her and it was lying in the Court of the Subordinate Judge. 1st Class, at Delhi. A cheque for Rs. 2,480/- was actually issued to her, which, according to the husband, she must have recovered and the rest of the money was still lying. She had also a Savings Fund account in Oriental Bank of Commerce at Delhi and Rs. 400/- were there to her credit. While leaving him, she had, taken away all the jewellery and costly clothes with her.

4. In support of her application, apart from herself going into the witness-box, she produced her father Mr. Gian Chand Gulati, Advocate, A. W. 1, Mr. Prem Datt, Advocate A. W. 2 and Mr. S.S. Nalwa, Retired Superintendent of Police, A. W. 3. In rebuttal, the husband alone appeared in evidence at R. W. 1.

5. After considering the evidence the trial Judge came to the conclusion that the husband had deposited Rs. 5,480/- in the Delhi Court since March 1970 for payment to his wife, who had so far taken only Rs. 1,000/-. She had not disclosed as to when the said amount of more than Rs. 4,000/- was still lying in deposit for payment to her. This amount represented the maintenance of Rs. 200/- per month, which the husband had to pay to the wife. There were Rs. 400/- to the credit of the wife in her Savings Bank Account in the Oriental Bank of Commerce, Delhi. But, according to her, she had withdrawn Rs. 400/- after September 1969. She did no mention the exact date of the said withdrawal. The balance in the amount, according to her, Rs. 10/- or Rs. 12/-. The learned Judge also found that she was being maintained by her father and that she was not spending anything out of the amount of maintenance granted to her. It was further found that the husband had given a list of the clothes, utensils etc., belonging to his wife, which, according to him, she could take charges of from him. These articles included a radio-gram, a sewing machine, a Godrej almirah, Press, Kettle, Dinner Set and other utensils and beddings. She had, however, not taken these articles from the husband. The learned Judge held that although it was true that those things had not been taken by the wife, but the husband had offered to return them and, therefore, they were within the control of the wife, which she could utilise for the payment of the court-fee. This wife had not explained whether or not she had spent Rs. 1,000/- received from the husband and Rs. 400/- withdrawn from her Savings Bank account. Taking all these facts into consideration and also the circumstance that the Collector had not recommended the case of the wife for permission to sue as a pauper, the learned Judge dismissed her application on 7th March, 1973, and she was allowed one month's time to pay the court-fee on the plaint. This order is being challenged by her in the present revision petition.

6. According to the evidence of the husband as R. W. 1, he was paying maintenance of Rs. 200/- per mensem to his wife since March 1970 till the day he gave evidence on 3rd February, 1973. He had deposited Rs. 5,480/- in Court, with regard to which he had brought the receipts with him. The details of those receipts were as under (Omitted in this report--Ed.)

7. From these receipts, it would be seen that her husband had deposited Rs. 2,480/- before 14-12-1971, when the pauper application was filed by the wife and the rest, i.e. Rs. 3,000/-, was deposited subsequently, but before the decision of this application on 7-3-1973. According to the evidence of the wife, she was getting maintenance pendente lite from the husband, but it was not cashed. This maintenance was Rs. 160/- per month in the beginning and later on it was Rs. 200/-. But she had not received any amount except Rs. 1,000/-, which she got only a few months back. She gave her evidence on Ist December, 1972, and that meant that Rs. 1,000/- were taken by her a few months before December 1972. This amount was, therefore, received by her several months after she had filed the application under O. 33, R. 2, Code of Civil Procedure. She also stated in her evidence that after September 1969, she had not withdrawn any amount from any Bank, except Rs. 400/- from the Oriental Bank of Commerce, Delhi. This amount, therefore was withdrawn much before the date of the filing of the pauper application. The articles, out of the dowry, which the husband was offering to return to her, were still with the husband. Both the counsel are agreed that the court-fee, which the wife had to pay on the plaint, was Rs. 2,197.60 paise. These being the facts, the question for determination is whether the learned Judge was right in dismissing the wife's application for permission to sue in forma pauperis.

8. Who is pauper, has been defined in the explanation appended to Rule 1 of Order 33, Code of Civil Procedure. It reads:

'A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property, worth one hundred rupees other than his necessity wearing apparel and the subject-matter of the suit.'

9. As will be seen from the explanation, there are two parts thereof. The first part applies to a case where in a suit fee has been prescribed by law for the plaint and the second part deals with a case where no such fee is so prescribed. In cases, which are covered by the first, only that person will be declared to a pauper, who is not possessed of sufficient means to enable him to pay the prescribed fee. It is needless to mention the requirements of cases, to which the second part applies, because, admittedly, in the present case, the fee for the plaint has been prescribed by law. What do we mean when we say that a person is not possessed of sufficient means to enable him to pay the prescribed fee It is significant to mention that the word used in this part is 'means' and not 'property'. In other words, the question to be seen is not whether he possess sufficient property, which can enable him to pay the prescribed fee, but whether he has sufficient means for this purpose. He may or may not have the requisite amount with him, but if he can raise the requisite money on some property, he will not be considered to be a pauper.

10. The next question is-on what date is it to be considered whether he is possessed of sufficient means to enable him to pay the prescribed fee It is on the date of the filing of the application under O. 33, Rule 2, Code of Civil Procedure, or on the date of its decision ?

11. There is difference of judicial opinion between some High Courts on this point. Some, viz., the Calcutta and Bombay High Courts, have held that the date of filing the application is the material date and while others, e.g., Madras and Patna High Courts, are taking a different view. It is needless to discuss this point in the instant case, because even if the date of filing is to be seen, then it is common ground that the husband had deposited Rs. 2,480/- by way of maintenance before the said date the husband had deposited Rs. 2,480/- by way of maintenance before the said date and this amount would have been enough for paying the court-fee, which was Rs. 2,197.60 paise.

12. There is also difference of opinion between some Courts as to whether or not the value of the property claimed in the suit should be taken into consideration for deciding the question of pauperism. I am mentioning the point, because, during the course of arguments before me, it was contended by the learned Counsel for the respondent that the husband had given a list of the articles, which were the subject-matter of the suit, which, according to him, his wife could take charge of from him, though she had not availed of that offer and taken those articles from him. This point also need not be decided, because the amount deposited, namely, Rs. 2,480/-, according to the respondent, was sufficient for paying the requisite court-fee on the plaint.

13. So the only matter left to be considered is whether the said amount, namely, Rs. 2,480/-, could be taken into consideration for giving a finding as to whether he plaintiff was a pauper or not. It was the contention of the petitioner that this amount, which, admittedly, represented her maintenance, which the husband was depositing @ Rs. 160/- in the beginning and later on @ Rs. 200/- in the two earlier petitions....... for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, which was filed in September, 1969, and withdrawn after about two years, and the second for judicial separation under Section 10 of the Act, which was brought by the husband in September/October, 1971, and was still pending......... could not be taken into consideration for determining the question as to whether or not she was possessed of sufficient means to enable her to pay the prescribed court-fee. The submission was that the said amount was for her maintenance and had to be sent towards the same and not for paying the court-fee.

14. Both the counsel agree that there is no authority on this point. As at present advised, I am, however, of the opinion that there would have been merit in the contention of the learned Counsel for the petitioner if it could be shown that the amount of maintenance deposited by her husband; was being spent by her for maintaining her. One can conceive of a case where his wife does not possess any kind of property and the maintenance is paid by the husband in the beginning of the month and she spends the same for her day-to-day expenses. One can also imagine another case where is similar circumstances, the maintenance amount is deposited late on, but in the meantime, the wife continues taking money on credit for her maintenance and the debt is paid when the maintenance amount is subsequently deposited by the husband. I had an occasion to deal with such a situation in Dyal Kaur v. Ujagar Singh, AIR 1972 Punj and Har 18. There the amount was being deposited by the husband for the maintenance of his wife and daughter and the wife used to take money on credit and when the maintenance money was paid by her husband, the debt was paid off. Both the wife and the daughter used to maintain themselves on credit and they used to clear off their debts on the deposit of the maintenance amount by the husband. Under those circumstances, I held that the maintenance amount could not be taken into consideration for finding out whether she was possessed of sufficient means to enable her to pay the fee prescribed by and whether or not she was a pauper.

15. Such a situation has not, however, arisen in the present case. It is in evidence that the petitioner's father is practising as an Advocate at Karnal and it was he, who was maintaining her all through. The petitioner has appeared in the witness-box and she produced her father also as a witness, apart from some other persons. None of them has stated that she had borrowed any money for her maintenance, which had to be paid out of the maintenance amount deposited by the husband. All that has been said is that up-till date the petitioner's father has been maintaining her. The maintenance amount, which was been deposited before the date of the filing of the pauper application, has, therefore, become her sole property, out of which she owes nothing to anybody. This amount is completely within the control of the petitioner and can be utilized for paying the requisite court-fee on the plaint. Under these circumstances, it is not possible to say that she is not possessed of sufficient means to enable her to pay the prescribed court-fee. That being so, she cannot he held to be pauper within the meaning of the explanation to Rule 1 of Order 33, Code of Civil Procedure.

16. In view of what I have said above, this petition fails and is dismissed. There will, however, be no order as to costs. She is, however, allowed a period of three months to pay the necessary court-fee on the plaint.

17. Order accordingly.


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