SRI U.MAHABALA SHETTY vs. SHRIRAM INVESTMENTS LTD

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 06th DAY OF APRIL 2018

BEFORE

THE HON’BLE MR. JUSTICE B.M.SHYAM PRASAD

WRIT PETITION NO.4967/2014 (GM-CPC)

BETWEEN:

SRI U. MAHABALA SHETTY S/O. SANKAPPA SHETTY, AGED ABOUT 53 YEARS, RESIDING AT PRAKASH NAGAR, PILLAR, SOMESHWAR VILLAGE, KOTEKAR POST, MANGALURU TALUK-575023, DAKSHINA KANNADA DISTRICT.

... PETITIONER

(BY SRI. Y. RAJENDRA PRASAD SHETTY, ADVOCATE)

AND :

SHRIRAM INVESTMENTS LTD., REGENCY COMMERCIAL COMPLEX, BENDOORWELL, KANKANADY, MANGALURU TALUK-575002, D.K. REPRESENTED BY OFFICER K. VASUDEVA.

... RESPONDENT

(BY SRI P.N. RAJESWARA, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.3.2010 PASSED IN MISC. CASE NO.25/2003, PASSED BY THE III ADDL. SENIOR CIVIL JUDGE, MANGALORE D.K. AT ANNEXURE-E AND ORDER DATED

2 22.11.2013, PASSED IN M.A. NO.85/2011 BY THE HON’BLE IIII ADDL. DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA BY THIS HON’BLE COURT AT ANNEXURE-F; DIRECT THE TRIAL COURT TO PERMIT THE PETITIONER TO SUE AGAINST THE RESPONDENT AS AN INDEGNET PERSON WITHOUT PAYING THE COURT FEE AND GRANT AN INTERIM ORDER TO STAY THE IMPUGNED ORDER DATED.10.3.2010 PASSED IN MISC.CASE NO.25/2003 PASSED BY THE 3RD HON’BLE CIVIL, D.K., ANNX-E AND ORDER DTD.22.11.2013 PASSED IN M.A.NO.85/2011 BY HE HON’BLE 3RD DIST & SESSIONS JUDGE, D.K., AT ANNX-F.

THIS WRIT PETITION COMING ON FOR PRL. HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

The petitioner has filed this writ petition impugning the orders dated 22.11.2013 in M.A. No.85/2011 on the file of the III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru and the order dated 10.03.2010 in Misc. Case No.25/2003 on the file of III Additional Senior Civil Judge, Mangalore D.K, and for other relief/s.

The petitioner instituted proceedings under Order XXXIII Rule 1 of the Code of Civil Procedure, 1908 (for short ‘the CPC’) claiming to be an indigent person for recovery of damages in a sum of Rs.6,24,190/- against the respondent, and

3 the petitioner’s claim to institute the proceedings as indigent person, was rejected by the first Court on 10.03.2010. The First Court considered the admission by the petitioner that he had an account with the Syndicate Bank, Mission Street and that he had Permanent Account Number (for short ‘the PAN’) from the Income-Tax Department, but the petitioner neither produced the bank statement nor filed the returns. The petitioner challenged this order of the First Court in appeal in M.A.No.85/2011. The Appellate Court after taking note of the petitioner’s admission that the petitioner held Bank Statement and was a PAN card holder but had not furnished either the bank statements or the returns filed before the Income-Tax Department, considered the petitioner’s evidence that the petitioner’s son was abroad and the petitioner was living in one of the prime locations in the city of Mangaluru that was owned by his close relative. The Appellate Court also considered the evidence that the petitioner and his wife were shareholders in a private entity. The Appellate Court in

4 consideration of this evidence concluded that the petitioner cannot be considered an indigent person and that the order of the first court did not call for interference.

The learned counsel for the petitioner submitted that the First Court and Appellate Court committed an error in failing to consider the report filed by the Tahsildar which established that the petitioner did not own any immovable property, he worked only as a temporary driver and his family income was only Rs.12,000/- per annum; and that these circumstances establish that the petitioner was an indigent person. The learned counsel also submitted that no adverse inference could have been drawn merely because the petitioner had commenced another suit for recovery of money and paid the court fee in such suit.

The learned counsel for the respondent, on the other hand, placed reliance upon a decision of the Hon’ble Supreme Court in the case of Mathai M Paikeday vs. C.K.Antony1, and contended that a person’s claim to be an indigent person

1 (2011)13 SCC 174

5 should be tested against the factors such as person’s employment, ownership of realizable unesssncumbered assets, person’s total indebtedness and financial assistance received from the family, friends or close friends. The learned counsel submitted that if the petitioner’s claim is thus tested in the context of the evidence available on record (which established that the petitioner was receiving financial assistance from his family, the petitioner and his wife held shares and that his son was staying abroad) there is no irregularity in the impugned orders. The submission made by the learned counsel for the petitioner that the First Court and the Appellate Court ought to have accepted the Tahsildar’s Report will have to be examined in the light of the decision of the Hon’ble Supreme Court in Mathai M Paikeday vs. C.K.Antony (supra) and the relevant paragraph would be 19, which read as follows:- “19. Moreover, the factors such as person’s employment status and total income including retirement benefits in

6 the form of pension, ownership of realisable unencumbered assets, and person’s total indebtedness and financial assistance received from the family members or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee. Therefore, the expression “sufficient means” in Order 33 Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee.”

In this case there is definite evidence that the petitioner was receiving financial assistance from his family, the petitioner and his wife held shares and that petitioner’s son was staying abroad, and these, in view of the law declared by the Hon’ble Supreme Court Mathai M Paikeday vs. C.K.Antony (supra), would be relevant factors and render the petitioner’s claim of being an indigent person unacceptable. Further, the petitioner despite admitting to being an assessee

7 with PAN card and holding savings account, did not submit either the bank statement or the returns filed, and this failure definitely entails drawing adverse inference as against the petitioner’s claim of being an indigent person. In the background of this evidence, the petitioner’s claim could not have been accepted merely because the Tahsildar has reported that the petitioner did not own immovable property and that his family income is about Rs.12,000/- per annum, and in fact, the Tahsildar’s Report is rendered incredulous in view of the evidence available. In these circumstances, it cannot be said that there is any irregularity or perversity in the orders of the First Court and the Appellate Court, and as such, the petition is liable to be rejected. Accordingly, the petition is rejected.

Sd/-

JUDGE

nv/BS