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Maluram Hemraj Vs. Arjun Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 428 of 1971
Judge
Reported inAIR1972Raj311; 1972()WLN419
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 2
AppellantMaluram Hemraj
RespondentArjun Singh and ors.
Appellant Advocate K.L. Kachhara, Adv.
Respondent Advocate Pukhraj, Adv. for; L.R. Mehta, Adv.
Cases ReferredIn Chingakham Chooba Singh v. Naorem Sajou Singh.
Excerpt:
.....persons who really are in need of the help of the court. of course, if the omission is inadvertent or bonafide, one may be allowed to amend his application. - - the trial court recorded evidence of the parties and then by the impugned order rejected the application of the petitioner for being permitted to sue as pauper on the ground that the petitioner failed to disclose in the list of his assets a house belonging to him. air 1952 all 608 the applicant failed to disclose a decree for costs in his favour and that entitled the dismissal of his application to sue in forma pauperis holding that rules 1 and 2 of order 33, civil p. air 1964 manipur 31 one finds that therein also any intentional departure from good faith in disclosing the assets, whatever be the motive was held to..........further alleged that the petitioner did not disclose in the schedule attached to the application a house property belonging to him and which was valued at rupees nineteen thousand. the trial court recorded evidence of the parties and then by the impugned order rejected the application of the petitioner for being permitted to sue as pauper on the ground that the petitioner failed to disclose in the list of his assets a house belonging to him. the explanation of the petitioner in the, trial court was that that property was' actually worth rupees five to seven hundred only and was mortgaged with one prakash chand for rupees 2.400/-. the trial court did not believe that explanation to be true.3. aggrieved by the impugned order of the trial court, this revision has been preferred.4. relying.....
Judgment:
ORDER

R.D. Gattani, J.

1. The petitioner Maluram was allotted 15 Bighas of agricultural land by the Colonisation Department, Government of Rajasthan. According to him on 15-5-1964 he executed a general power of attorney in favour of respondent Arjun Singh who without his power on 10-1-1967 executed a sale-deed in respect of the agricultural land allotted to the petitioner in favour of the sons of respondent No. 1, and even the sale price i. e. Rs. 23,500/- mentioned in the sale deed was not given to the petitioner. According to the petitioner the market price of the disputed land at the time of the filing of the suit was Rs. 45,000/-. The petitioner, therefore, brought a suit in forma pauperis in the Court of Addl. District Judge, Sri Ganganagar on 10-1-1970for the cancellation of the sale-deed and possession of the land in dispute; in the alternative for the payment of Rupees 45,000/- to him from the defendants.

2. The application of the petitioner for permission to sue in forma pauperis was opposed by the defendants, who alleged that the petitioner had sufficient means to pay the court-fees. It was further alleged that the petitioner did not disclose in the Schedule attached to the application a house property belonging to him and which was valued at rupees nineteen thousand. The trial Court recorded evidence of the parties and then by the impugned order rejected the application of the petitioner for being permitted to sue as pauper on the ground that the petitioner failed to disclose in the list of his assets a house belonging to him. The explanation of the petitioner in the, trial Court was that that property was' actually worth rupees five to seven hundred only and was mortgaged with one Prakash Chand for Rupees 2.400/-. The trial Court did not believe that explanation to be true.

3. Aggrieved by the impugned order of the trial Court, this revision has been preferred.

4. Relying upon the authorities Kuppusamy Aiyar v. Muthusamy Aiyar, AIR 1915 Mad 652; Nirmal Kumar Mitra v. Monoranjan Chatterjee, AIR 1955 Cal 192; Bagala Sundari Devi v. Rivers Steam. Navigation Co. Ltd., AIR 1934 Cal 640; Mt. Bibi Khudai Jatul Kubra v. Mt. Bhagalan, AIR 1950 Pat 364 and Ram-das Sahu v. Ram Chandra Sahu, AIR 1957 Pat 562 the learned counsel for the petitioner has urged that the lower Court should not have rejected the petitioner's application. He has further urged that the non-disclosure of the house property in the Schedule was not intentional, but was due to inadvertence.

5. In AIR 1915 Mad 652 it was held that the non-disclosure of the property might be due to inadvertence and the value of the property also might not have affected the decision meaning thereby that even if it was shown from the very beginning in his assets, its value might not be significant. The case was therefore, remanded. In AIR 1955 Cal 192 it was held that the Court should find out the value of the property left and then should pass suitable order. In this case the applicant later on admitted that he had a 'Ghar' in Pakistan, which he did not include in the Schedule attached to the application. In AIR 1934 Cal 640 the applicant applied for amending her application when her attention was drawn to the non-inclusion of a property which she inherited from a deceased son of hers. The lower Courtdisallowed the prayer for amendment.

In revision the High Court held that the omission being inadvertent, the application for amendment should have been allowed. In AIR 1950 Pat 364 the estimated value of the property left was not brought on record and as such the case was remanded. In the last case AIR 1957 Pat 562 the application was filed by a person who had just come of age and who during his minority had been living with his sister. Because of the circumstances of the case the omission was held to be bona fide and inadvertent and, therefore, he was allowed to amend his application so as to include the properties left.

6. On the other hand the learned counsel for the respondent has urged that the omission in this case being mala fide, the lower Court rightly rejected the application. He has also relied upon some cases. The first is Kuppuswami Naidu v. Varadappa Naidu, AIR 1943 Mad 11 in which it was held that fraudulent suppression of assets must result in dismissal of application. It was further held that the fact that disclosure of such assets would not affect on merits is not relevant. This authority was followed in Chellammal v. Muthulakshmi Animal. AIR 1945 Mad 296 and the leave granted by the lower Court was cancelled. The same view was taken in Ghanshyam Dass Rastogi v. A. N. Syal. AIR 1961 Punj 131 when leave to sue in forma pauperis was cancelled. In Maharai Ball v. Mt Tirath Dei. AIR 1952 All 608 the applicant failed to disclose a decree for costs in his favour and that entitled the dismissal of his application to sue in forma pauperis holding that Rules 1 and 2 of Order 33, Civil P. C. are mandatory in nature. In Chingakham Chooba Singh v. Naorem Sajou Singh. AIR 1964 Manipur 31 one finds that therein also any intentional departure from good faith in disclosing the assets, whatever be the motive was held to attract the consequence of dismissal. I need not multiply the number of authorities which have taken similar view in the matter. No reported or un-reported case of this Court was referred to, by any side.

7. A person who seeks the indulgence of the Court to sue as a pauper must be true in the matter of disclosing his assets. In the garb of pauper he should not be allowed to evade the payment of court-fee. Where the petitioner, is not frank and true in the matter of pointing out his assets, his petition to sue as forma pauperis is liable to be dismissed. The provisions of Order 33, Civil P. C. are meant for just and deserving persons who really are in need of the help of the Court Of course, if the omission is inadvertent or bona fide, one may be allowed to amend his application.

8. In this particular case the property left out by the petitioner is a house which according to the respondents is worth 9-10 thousands. On the other hand if the petitioner's version is to be believed, it is worth Rs. 500/- or Rs. 700/- only, even though it is mortgaged for a sum of Rs. 2,400/-. It is not his case that the value of equity of redemption is only Rs. 500-700/-. In other words according to the petitioner the market value of the disputed property free from, any encumbrances is Rs. 500/- to Rs. 700/-only. It is rather surprising that in that case also he could secure a sum of Rs. 2,400/- by mortgaging it. All this, in my opinion, shows the lack of good faith of the petitioner. Moreover, neither in the lower Court he applied for amending his application, nor before this Court he showed any desire to amend his application so as to include this property also among his assets. This omission on the part of the petitioner to include this house property in the Schedule of his assets being intentional and not inadvertent, I am of the view that his application was rightly rejected by the lower Court.

9. However a period of two months is granted to the petitioner under Order 33, Rule 15 (2) as applicable to this State within which the petitioner may file the requisite court-fee in the lower Court. In that case, the lower Court will proceed further in the matter in accordance with law.

10. The revision petition is disposed of accordingly. The petitioner shall pay the costs of this petition to the respondents.


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