Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 17.01.2013
+ FAO (OS) 298/2010
SHIROMANI GURUDWARA PRABHANDHAK
COMMITTEE AND ANR ..... Appellants
Through Mr. H.S. Phoolka, Sr. Adv. with
Mr.Ashok Kashyap, Mr. Virender
Verma nd Mr. Gursimran Singh,
Advs.
Versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr Rajesh Katyal, Adv. for R-1
& R2
None for respondent No. 3.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
SANJAY KISHAN KAUL, J. (Oral)
.
1 The present appeal has a saga of 27 years of dispute and the issue
arose at the threshold itself i.e. whether the appellant was entitled to sue
as an indigent person within the meaning of Order XXXIII of the Code
of the Civil Procedure, 1908 (hereinafter referred to as the said Code).
We are informed that out of these 27 years, almost 23 years were spent
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in the proceedings before the Chief Ministerial Officer who had the
occasion to deal with evidence about the status of being an indigent
person.
2 The appellant before us filed an IPA through the then President
seeking recovery of damages of Rs.1,000/- crores for loss of moveable
and immoveable properties of various gurdwaras administered by the
appellants across the country under the provisions of the Punjab Sikh
Gurdwara Act, 1925 in the wake of operation Blue Star. Respondents
No. 1 & 2 being the Union of India opposed the application by filing
objections to the same. On completion of pleadings of IPA No. 23/1986,
the matter has been taken up by the learned Single Judge who passed the
order dated 20.09.1989. This order is of some significance in view of
the pleas advanced before us by the learned senior counsel for the
appellant which we will examine later on but in view thereof, we
consider it necessary to note about the salient aspects of this order.
3 The learned Single Judge noticed that amongst the objections
raised by respondents No. 1 & 2 to the IPA was not only the objection
about the right of the appellant to sue as a pauper in view of the moneys
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at the disposal of the appellant but also that the IPA did not disclose a
cause of action. In the same context, reliance was also placed on the
provisions of the Armed Forces (Punjab and Chandigarh) Special
Powers Act, 1983. The suit had been originally instituted in Amritsar
but on an application filed by respondents No. 1 & 2 before the Hon‟ble
Supreme Court, the same was transferred to this Court. The learned
Single Judge has noted that lengthy arguments were advanced before
him on the question whether the suit was barred under the provisions of
clause (d) & (f) of Rule 5 of Order XXXIII of the said Code. The main
contention being that there was a bar under the said Code and thus no
cause of action arose. In the said context while examining the scheme of
Order XXXIII of the said Code, the aspect which arises for
consideration was whether such a question could be decided by the
Court when the petitioner was being allowed to lead evidence as
contemplated by Rule 7 of Order XXXIII of the said Code. The learned
Single Judge opined that the examination of witnesses of the indigent
person though being confined under sub-Rule 1 (A) of Rule 7 of the said
Code to the matters specified in Clause (b), (c) and (e) of Rule 5 of
Order XXXIII of the said Code, did not preclude the examination of the
FAO (OS) No. 298/2010 Page 3 of 17
appellant or indigent to any of the other matters specified in Rule 5 of
the said Code. Thus the conclusion reached was that the petitioner has a
right to lead evidence even on Clause (d) and (f) of Rule 5 of Order
XXXIII of the said Code. The learned Single Judge thus came to the
conclusion that it is only after the evidence is recorded that the Court
has to hear arguments which the parties may desire to offer on the
question whether on the face of the application, the same is subject to
„any of the prohibitions specified in Rule 5‟. Since the evidence was yet
to be recorded, the learned Single Judge declined to pronounce on the
question relating to absence of cause of action and gave opportunity to
the appellant before us to examine itself and its witnesses under Clause
1 (A) of Rule 7 of Order XXXIII of the said Code. Such an inquiry
under the Statute being mandated to be done by the Chief Ministerial
Officer, the same was so directed and the question as to whether the
petition was barred under the provisions of Clauses (d) and (f) of Rule 5
of Order XXXIII of the said Code was observed to be considered by the
Court after receipt of the report.
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4 It is after the aforesaid order, the Chief Ministerial Officer
proceeded to record the evidence produced by the appellant and
submitted a report dated 31.07.2008 concluding that the appellant has
the sufficient means to pay the Court fees. In coming to this conclusion,
the moneys invested by appellant No. 1 in FDRs and those lying to the
credit of the SGPC in various bank accounts amounting to
Rs.23,33,43,675.13 were taken into consideration as the requisite Court
fees payable was Rs.10 crores in respect of the relief claimed for on
behalf of the appellant. To this report, objections were filed by the
appellants.
5 We may note that there is another order passed on 23.02.2006 by
another learned Single Judge in the IPA to which our attention has been
drawn by the learned senior counsel for the appellant. This order was
however passed while the inquiries before the Chief Ministerial Officer
were still pending and once again stated that the question of the suit
being barred under Clause (d) & (f) of Rule 5 of Order XXXIII of the
said Code was to be considered after the report was received.
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6 The objections to the report of the Chief Ministerial Officer were
examined by the learned Single Judge and the same have been dismissed
vide the impugned order dated 08.03.2010 on IA No. 12841/2008 and
the appellants were granted eight weeks to pay the requisite Court fees
failing which necessary consequential orders would follow.
7 A perusal of the impugned order shows that the learned counsel
for the appellant confined his objection within a limited compass as set
out in para 3 of that order. It was submitted before the learned Single
Judge that respondents No. 1 & 2 had not only raised objections to the
appellant being an indigent person but also raised objections with regard
to the maintainability of the IPA on grounds provided under Rule 5
clauses (d) & (f) of the Order XXXIII of the said Code. This in turn was
predicated on the plea of lack of cause of action and the suit being
barred under the provisions of Armed Forces (Punjab and Chandigarh)
Special Powers Act, 1983. It was the submission of the learned counsel
for the appellant that in view of the observations made by the learned
Single Judge in the order dated 20.09.1989, the issue of indigency of the
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petitioner is to be decided along with the issue with regard to
maintainability of the petition in the light of the objections raised by the
respondents pertaining to lack of cause of action and bar to the
proceedings. On the other hand, the learned counsel for respondents No.
1 & 2 pleaded absence of any such direction in the order dated
20.09.1989 read with clarification contained in the order dated
23.02.2006. The learned Single Judge found against the appellant in the
impugned order. The evidence to be led under the provisions of Rule 7
of Order XXXIII of the said Code was required to be led qua only
matters covered under Rule 5 (b), (c) and (e) of Order XXXIII of the
said Code. Thus the learned Single Judge opined that the issue of
payment of Court fees could be segregated from the issue of
maintainability of the suit.
8 The only other aspect urged by the learned counsel for the
appellant before the learned Single Judge was that the funds lying in the
fixed deposit to the credit of the appellant were not designated for the
purpose of litigation and thus those funds could not be taken into
account; those funds were being capable of being used only for the
FAO (OS) No. 298/2010 Page 7 of 17
maintenance and improvement of gurdwaras. In this behalf a similar
objection was raised before the Chief Ministerial Office who concluded
that the expenses incurred towards litigations are obligations covered
under Sections 106 and 108 of the Punjab Sikh Gurdwara Act as they
are obligations to the State in view of the provisions of the Court Fees
Act, 1870. Not only that there was annual budgets maintained by
appellant No. 1 right from the year 1986-1987 till 2006-2007 but there
was a reference to debit of expenses also in respect of litigation. In fact
PW-4 Sardar Avtar Singh conceded in his deposition that the expenses
which have been incurred on litigation in the past were debited to the
head “General Miscellaneous Expenses Account”. Allocation of funds
under different heads being essentially within the domain of appellant
No. 1, it was held that such allocation could not be made to deprive the
State of its legitimate dues in the form of Court fees.
9 We have heard the learned counsel for the parties and the scope of
arguments are more or less in the same canvass as noted aforesaid.
10 In order to appreciate the rival contentions, the scheme of Order
XXXIII of the said Code has to be noticed keeping in mind the
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submission of the learned senior counsel for the appellant that it is not
the indengcy alone which has to be decided. We may notice that Rule
1A was added by the amendment Act of 104 of 1976 w.e.f. 01.02.1977
and reads as under:-
“1A. Inquiry into the means of an indigent person.- Every inquiry into the question whether
or not a person is an indigent person shall be made, in the first instance, by the chief
ministerial officer of the Court, unless the Court otherwise directs, and the Court may adopt
the report of such officer as its own finding or may itself make an inquiry into the question.”
11 It is thus apparent from the insertion of the aforesaid Rule that
every inquiry qua the indigency of a person is to be made in the first
instance and that too by a Ministerial Officer of the Court.
12 The circumstances under which an application preferred as an
indigent person can be rejected are set out in Rule 5 which reads as
under:-
“5. Rejection of application.- The Court shall reject an application for permission to sue as
[an indigent person]-
(a) Where it is not framed and presented in the manner prescribed by rules 2 & 3, or
(b) Where the applicant is not an [indigent person], or
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(c) where he has, within two months next before the presentation of the application
disposed of any property fraudulently or in order to be able to apply for permission to sue
as [an indigent person]:
[Provided that no application shall be rejected if, even after the value of the
property disposed of by the applicant is taken into account, the applicant would be entitled
to sue as an indigent person] or
(d) Where his allegations do not show a cause of action, or
(e) Where he has entered into any agreement with reference to the subject matter of the
proposed suit under which any other person has obtained an interest in such subject matter,
or
(f) Where the allegations made by the applicant in the application show that the suit
would be barred by any law for the time being in force, or
(g) Where any other person has entered into an agreement with him to finance the
litigation.”
13 It is important to note that each of the Clauses is suffixed with the
expression „or‟. Thus the existence of any of the seven eventualities
covered under clauses (a) to (g) would be sufficient to reject an
application as an indigent person and it is not as if all the seven
conditions need to be satisfied (an aspect emphasized by the learned
counsel for respondents No. 1 & 2).
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14 Sub- Rule 7 provides for the procedure at hearing and reads as
under:-
“7. Procedure at hearing.- (1) On the day so fixed or as soon thereafter as may be
convenient the Court shall examine the witnesses (if any) produced by either party, and may
examine the applicant or his agent and shall make [a full record of their evidence].
[(1A) The examination of the witnesses under sub-rule (1) shall be confined to the matters
specified in clause (b), clause (c) and clause (e) of rule 5 but the examination of the
applicant or his agent may relate to any of the matters specified in rule 5]
(2) The Court shall also hear any argument which the parties may desire to offer on
the question whether on the face of the application and of the evidence (if any) taken by the
Court [under rule 6 or under this rule], the applicant is or is not subject to pay of the
prohibitions specified in rule 5.
(3) The Court shall then either allow or refuse to allow the applicant to sue as [an
indigent person].
15 Sub-Rule 1 (A) of this Rule 7 again inserted by the said
amendment Act 104 of 1976 specifies that the examination of the
witnesses is to be confined to the matters specified in clause (b), clause
(c) and clause (e) of Rule 5 but the examination of the applicant/indigent
may relate to any other matter specified in Rule 5.
FAO (OS) No. 298/2010 Page 11 of 17
16 Learned senior counsel for the appellant contends that
respondents No. 1 & 2 had the option to raise only the issue qua the
indigency of a person in which case the inquiry would have been
confined to that aspect alone. However respondents No. 1 & 2
mentioned other grounds beyond that in their opposition to the
application for indigency and raised the issue arising from clauses (d) &
(f) and thus in such a situation, the decision on the issue of indigency
has to be coupled with the decision on other aspects. He further submits
that there cannot be a decision on indigency alone while withholding the
decision on the other two aspects.
17 In our view such a plea is based on a misconstruction of the
Statute. Respondents No. 1 & 2 are entitled to seek rejection on any of
the grounds mentioned in clause (a) to clause (g). Thus even in a case
where a person is found to be indigent, the IPA is not liable to be
registered as a suit if the petitioner is entitled to be knocked off on any
other grounds. A threshold bar can thus be created on any of these
grounds. The object is that the suit should not proceed fruitlessly even in
case of an indigent person if there is a bar as contained in other clauses.
FAO (OS) No. 298/2010 Page 12 of 17
Whether the person is an indigent or not is only one of the parameters
for rejection of such an application as contained in clause (b). These
clauses are mutually exclusive and can stand alone by themselves as a
bar to the suit.
18 The aforesaid would not imply that where an application cannot
be proceeded with on account of an adverse finding under clause (b), all
other aspects necessarily have to be decided at the same stage. In fact it
would amount to giving a license to a person who has the capacity to
pay the Court fees to file a frivolous suit to get the issue of
maintainability of the suit decided without paying the requisite Court
fees. The intent of the Legislature is that where a person may be held
to be an indigent person, yet the suit may not proceed or rather the IPA
is liable to be dismissed if any of the other clauses apply.
19 In our view the orders passed by the learned Single Judge of this
Court on 20.09.1989 and further clarified on 23.02.2006 are towards the
same objective and have to be read accordingly. It is not as if the
impugned order has been passed contrary to the mandate of the earlier
two orders.
FAO (OS) No. 298/2010 Page 13 of 17
20 Learned senior counsel for the appellant sought to rely upon an
order of the Hon‟ble Supreme Court in Kamu Alias Kamala Ammal Vs.
M. Manikandan and Another (1998) 8 SCC 522. The question there was
that whether permission to sue as an indigent person can be granted
without going into the question whether there is any cause of action
shown in the plaint. The answer to the same was held to be in the
negative which is in line with our reasoning as recorded aforesaid that
even where a person is an indigent person, it does not imply that despite
failure to show cause of action such a petitioner would be entitled to
continue the IPA as a suit. In fact the very objective is that even an
indigent person must be blocked at the threshold if it is a frivolous claim
barred by any other clause of Rule 5. The other judgment, which to our
mind is effectively laying down the same proposition, and cited at the
bar is Nasir Ahmed Vs. Delhi Development Authority 25 (1984) DLT
346. One of the principles laid down therein was that once it is held that
a person is not an indigent person, time ought to have been granted to
pay the Court Fees. There is no issue qua this aspect in the present
appeal. In fact this is the ratio of that judgment. The learned Single
Judge has only opined that even after the merits of an indigency have
FAO (OS) No. 298/2010 Page 14 of 17
been discussed, the Court is not precluded from dismissing an IPA on
any of the grounds stated in Rule 5.
21 We are not really required to examine the plea of res-judicata
urged by the learned senior counsel for the appellant for the reason that
the same is predicated on a reading of the order dated 20.09.1989 with
which interpretation we are not in agreement. It has to be kept in mind
that if the opinion is against the indigent person qua the issue of
indigency, then the plaint can be registered only on payment of Court
Fees. It is only then that it can be said that there is a proper plaint before
the Court to examine the matter. The result of an adverse finding under
clause (b) of Rule 5 is that the Court Fees has to be paid within the time
specified so that there is a proper plaint before the Court.
22 In the present case, clause (b) itself is a bar to the continuation of
the IPA and thus the appellant is required to pay the requisite Court Fees
for the suit to proceed further. Respondents No. 1 & 2 rightly took all
the objections as they were entitled to in response to the IPA in view of
the wording of the clauses of Rule 5 as they had the option to seek the
dismissal of the IPA on the other two grounds even if an opinion was
FAO (OS) No. 298/2010 Page 15 of 17
rendered in favour of the appellant qua the issue of indigency under
clause (b) of Rule 5.
23 We may also add that once again the learned counsel for the
appellant, possibly more out of formality, sought to plead the issue of
there being no allocation of funds by appellant No. 1 to pay the Court
fees. The findings of the learned Single Judge, based on the appreciation
of evidence produced before the Chief Ministerial Officer, are well
reasoned and endorsed by us. Appellant No. 1 has been initiating legal
proceedings and paying Court fees out of certain heads of funds
available with it though the heading of the fund may be different i.e.
“General Miscellaneous Expenses Account”. The witness of the
appellant himself admitted to even meeting expenses in this manner.
The learned Single Judge thus rightly opined that the bifurcation of
heads being within the domain of appellant No. 1, the interest of the
revenue of the State cannot be prejudiced by the non-payment of Court
fees by raising a plea as sought to be raised on behalf of the appellant.
24 We thus find the appeal meritless and dismiss the same. In view
of the factual matrix, we refrain from imposing costs.
FAO (OS) No. 298/2010 Page 16 of 17
25 In view of there having been a stay of suit proceedings, the
appellant is now granted another period of eight weeks from today to
pay the Court fees, time period specified by the learned Single Judge in
the impugned order.
26 List before the learned Single Judge on 18.03.2013.
SANJAY KISHAN KAUL, J
INDERMEET KAUR, J
JANUARY 17, 2013
A
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