Whether court can entertain temporary injunction application in pauper suit?

In those cases, it was held that a plaint filed by a pauper with an application to sue in forma pauperis cannot be treated as a suit. In those cases the question whether temporary injunction can be granted in exercise of inherent powers in a plaint with an application for permission to sue as pauper, was not even remotely involved. Dharmeshwar Nath Tewari's case (supra) though accepts the position that no suit comes into existence till the application to sue in forma pauperis is allowed, it was held that an injunction to protect the rights of the indigent person can be passed in exercise of the inherent Jurisdiction under Section 151 of the Code. In my view, the law laid down in Dharmeshar Nath Tewari's case is a good law and it was for this reason that it was followed by a Division Bench of Calcutta High Court as well as subsequently by this Court in Pankaj Kumar's case (supra). The legal position which admits of no doubt boils down to this : that an order of temporary injunction can be passed in exercise of Inherent powers under Section 151 of the Code on the plaint which has been presented by an indigent person with an application for leave to sue as such.

IN THE HIGH COURT OF ALLAHABAD

C.M.W.P. No. 19466 of 1999

Decided On: 24.05.1999

 Bal Kishan Agarwal  Vs.  Pulin Garg and Ors.

Hon'ble Judges/Coram:

Om Prakash Garg, J.

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Notes on Representative suit under Civil Procedure Code

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Procedure to be followed by court when exemption is granted in respect of payment of court fees

In this case the legal position seems to be quite omnificent that under Notification it is a case of exemption and under Order XXXIII of the Code it is a case of deferment of Court-fees on the success of the plaintiff. In this case since the exemption was granted under Notification, therefore, directly the case of Vandana Bhargava (supra), which is on Order XXXIII is not applicable on the facts of this case.

But it would be logical to hold that a case of exemption granted under section 35 of the Court Fees Act is also a case of personal right because under the notification exemption is granted to the persons and on his death the exemption would come to an end automatically. Therefore, the Court below has rightly directed the applicants that if their case is covered by the Notification and they are entitled to seek exemption they may file proper application and satisfy the Court. Thus, looking to the language of Notification it would not be prudent to hold that the exemption would continue even after the death of a person in whose favour it was granted because after the death of the plaintiff, the legal representatives have to prove that they are entitled to prosecute the suit and right to sue survive in their favour and they are also entitled to get the relief. It is logical because thereafter they will also get the benefit and fruits of the decree. The purpose of exemption is to protect the weaker section of the society from exploitation as per the constitutional requirement under Article 39A of the Constitution of India. Exemption from payment of Court-fees to the persons belonging to the weaker society is a constitutional mandate to provide free legal aid on the basis of equal opportunity for securing justice which should not be denied to the citizens by reason of economic disability. Though Shri Kochatta very vehemently submitted that the L.Rs. will have a right to continue with the suit irrespective of their means but since the aforesaid Notification is applicable to persons those who are falling within the specified category, therefore, after the death, the legal representatives would not be entitled to get the benefit of the same, unless they file application and prove that they are also entitled to get the benefit of the notification and also entitled for exemption from payment of Court-fees.

Once exemption is granted under Notification, may not be withdrawn or available for reconsideration to the parties during the pendency of the suit, even if minor attains majority, unskilled labourer become skilled, labourer or landless labour gets land, in that case the position of the date of suit may be material but this may not apply in a case of death, as has been argued by Shri R.C. Kochatta. It is not the intention of the Notification that benefit should be conferred on the L.Rs. even after the death of the deceased plaintiff; and also in the case when they are in a position to pay Court-fees. Thus this direction will safeguard the interest of the L.Rs. of the plaintiff that if they are also entitled to take the benefit of the Notification, they can also file application and satisfy the Court that they are also entitled for exemption, as has been directed by the trial Court in this case. Thus, the said direction will protect the interest of the L.Rs. as per the intention and spirit of the Notification.

 Citation: 2003(1)MPLJ290

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Civil Revision No. 121 of 2000

Decided On: 04.10.2002

 Mangilal s/o Mohanlal Porwal  Vs. Rameshchandra s/o 
Balmukand Porwal and others

Hon'ble Judges/Coram:
A.K. Gohil, J.

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Whether litigant is supposed to sell his property for paying court fees?

 The concept of "not possessed of sufficient means" is

essentially a negative factor to be established by the claimant


and hence can only be proved by him by adducing            positive

evidence of his assets, needs and expenditure and to convince

the Court that with the available resources, he is unable to set

apart sufficient funds to pay court fee. The duty of the Court is

only to decide, on the basis of materials furnished, whether

reasonable grounds have been made out to believe such claim.

This is all the more so, because of the social reality that the

economic situation, availability of resources, and expenditure of

a person depend on various factors, including the size of the

family, the number of dependents, other pressing necessities,

priorities in life, the cost of living index, status in the society,

etc. and hence, the person claiming indigency himself would be

the best judge to evaluate his priorities in life, which cannot be

substituted by the views of the Court unless the court finds it

thoroughly unreasonable.     Since the right to life under Article

21 of the Constitution of India takes in right to dignified life,

each person is entitled to make necessary provision for a

reasonable life of himself and family, apart from the bare

necessities of food, shelter and clothing. The courts should not

use the golden scale to weigh the income and expenditure of a


person and decide how best he could have utilized his means,

reduce the expenditure and could have saved money for paying

court fees. In this regard, the observation of the court below

that, even utilising the money from the available source for

payment of court fee, will not in any way affect the decent

living of the petitioners and that will not lead them to poverty is

mispleaded.

      15. In spite of several decisions mandating that the litigants

are not expected to sell their property, unfortunately, the court

below arrived at the wrong conclusion that, they could have

mortgaged the property and raised the loan. Further, Paulose

case (supra) was distinguished on a factual premise that, in that

case the extent of land involved was only one and half cents.

The constitutional mandate, the laudable object of Order XXXIII

and spirit of all the decisions referred to above, uniformly calls

for a liberal approach while considering applications for

indigency.

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

         THE HONOURABLE MR.JUSTICE THOTTATHIL  B.RADHAKRISHNAN
                                   &
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS

         TUESDAY, THE 21ST DAY OF JULY 2015

                         FAO.No. 98 of 2015 ()
                      

            VELUTHAPARAMBATH VASANTHA,W/O.VASU,AGED 49,
     
 Vs

           PURTHALATHKUNIYIL ALAKKADAN CHATHU,S/O.KRISHNAN,

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