KIRLOSKAR TOYOTA TEXTILE MACHINERY PRIVATE LIMITED

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 9TH DAY OF APRIL, 2021

BEFORE

THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

CIVIL PETITION No. 171/2015 Between:

Sri. N. Rajarathnam Aged about 68 years S/o. Late Gurvaiah Setty Residing at No.16, Kabadi Revanna Setty Road, Avenue Road Cross, Bangalore 560 002. … Petitioner

(By Sri C.M.Poonacha, Advocate)

And:

Sri. Jayantilal B. Chowhan Aged about 61 years S/o. Bhoormal chowhan, Residing at Vardhaman Pharma Distributors Pvt. Ltd., No.5, Gandhi Bazar, Basavanagudi, Bangalore 560 036. … Respondent

(By Sri Bharath S., Adv. for Sri. P. B. Raju, Adv.)

This Civil Petition is filed under order 44 Rule 1 of CPC praying to allow the petitioner to prefer the Regular First Appeal filed by him in R.F.A.No.1023/2015 aggrieved by the judgment and decree dated 11.03.2015 passed in O.S.No.9519/1997, as an indigent person.

2 This Civil Petition coming on for orders this day, the Court, made the following:

ORDER Petitioner has filed the present petition seeking to prosecute the proceedings as an indigent person in R.F.A.No.1023/2015 whereby the judgment and decree dated 11.03.2015 passed in O.S.No.9519/1997 has been challenged.

This petition has been filed invoking the provisions of Order 44 Rule 1 of CPC. Petitioner submits that he was arrayed as defendant before the Court of first instance and has suffered a decree for payment of a sum of Rs.4,47,200/- with interest @ 13% per annum. Petitioner submits that the Court fee payable on the appeal is Rs.29,945/- and that he has no means to pay the said amount. It is further submitted that the petitioner is not an income tax assessee and that he has no financial support from his two children. It is submitted that he is not keeping in good health and has no other source of income and being unable to raise funds to meet the financial requirement by

3 paying Court fee in the ordinary course, he seeks to sue as indigent person.

Learned Additional Government Advocate was directed to look into the aspect of financial status of the petitioner and file a report as per the order dated 27.04.2016. A memo has been filed enclosing copy of the report of the Tahsildar, who states that petitioner is deriving rent of Rs.4,000/- and has estimated annual income of Rs.48,000/-. It is also stated that petitioner has an immovable property, in which he is residing. The matter was referred for enquiry before the Registrar (Judicial) and the petitioner has asserted that he has no financial capacity to raise funds to pay Court fee in the appeal and has led his examination-in-chief before the Registrar (Judicial). Petitioner was also subjected to cross-examination and no other factors to controvert the assertions of the petitioner has come forth in the cross-examination. In fact, it also comes out that the house in which the petitioner is residing has been gifted to his son. It further comes out that he is

4 receiving Rs.4,000/- as rent from the tenant and all other suggestions to the contrary regarding receipt of higher rent have been denied. It also comes out that his children are in no way contributing to assist him financially and hence, he has sought for permission to continue the proceedings as indigent person.

Heard both sides.

Taking note of the case as made out by the petitioner and from the materials on record, it comes out that initially petitioner was owning a residential property in which he was residing and subsequently he has gifted the same to his son. There is no allegation that the gift to his son has been made malafide only to claim benefit to sue as indigent person. It also comes out that he is getting rent of Rs.4,000/- per month and has no other source of income nor his children are supporting him financially. Indigence should also be looked at from the point of view as to whether petitioner with his normal source of income is in a position to pay court fee. The material on record remains

5 uncontroverted. Petitioner has an income of Rs.4,000/- per month with no other financial assistance from his children and accordingly, the income of Rs.4,000/- could be stated to be income for his subsistence and daily living and cannot be taken note for the purpose of finding out as to whether petitioner could pay Court fee.

Accordingly, in light of the discussion made above, petition is allowed. Petitioner is permitted to sue as an indigent person while making it clear that in the event the petitioner comes upon any income or funds during the pendency of the proceedings, it would disentitle him to continue to sue as indigent person and petitioner to take steps to pay the Court fee.

Sd/- JUDGE