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Judgment
V.K. Jain, J.—This is a petition under Order 33 Rule 1 of the CPC for permission to sue the Respondents as an indigent person.
Petitioner No. 1 is a trust whereas Petitioners No. 2 & 3 are its trustees. The case of the Petitioners is that Respondents No. 2 & 3 namely Shri Baldev Krishan Bhandari and Lt. Gen.(retired) Prem Sagar, who are the trustees of Petitioner No. 1 - Bhandari and Sagar Charitable Foundation as also the trustees of Respondent No. 1 Pran Bhandari Memorial Charitable Trust, sold land belonging to Petitioner No. 1 trust for a consideration of Rs. 19,20,000/-. After sale of land, the money was transferred from the account of Petitioner No. 1 to the account of Respondent No. 1. It is alleged in the petition that the Petitioner does not possess sufficient means of court fee and, therefore, wants to sue as indigent person.
Order 33 Rule 1 of the Code of Civil Procedure, to the extent it is relevant provides that a person is an indigent person if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit.
The Petitioners have examined three witnesses. PW-1 Smt. Kumkum Gandotra who is one of the trustees of Petitioner No. 1 - Bhandari and Sagar Charitable Foundation has stated that Petitioner No. 1 has no immovable property and has no source of income. She further stated only a sum of Rs. 925.25 is left in the bank account of Petitioner No. 1. During cross-examination, she stated that a sum of Rs. 16612.310 was transferred by Respondents No. 2 & 3 to Respondent No. 1 and this was followed by transfer of FDR of Rs. 3 lakhs and some other amount from Petitioner No. 1 to Respondent No. 1. PW-2 Subhash Chandra, is an official of Punjab National Bank, Delhi Cantt. He has stated that on 19.11.1999, the balance in the account of Petitioner No. 1 with their bank was Rs. 835.25. The balance in the account at the time this witness was examined in the Court was Rs. 942.25. PW-3 Shri Paramjeet Singh is an official of Punjab & Sind Bank, Vasant Vihar Branch. He has stated that there was nil balance in the account of Petitioner No. 1 with Punjab & Sind Bank, Vasant Vihar after transfer of Rs. 1626612.30 to Saving Bank Account No. 2896.
No evidence has been led by the Respondents to show that the Petitioners possess sufficient means to pay the prescribed court fee.
A perusal of the order of this Court dated 12.05.2009 shows that after sale of 12 acres of land in Village Deeg, Ballabgarh, which belonged to Petitioner No. 1, by Respondent No. 3 as one of its trustees, Respondent No. 2, filed a suit in Faridabad Court in the name of Petitioner No. 1 trust for cancellation of the sale deeds executed by Respondent No. 3. That suit was dismissed by the trial court on 29.08.2007. Respondent No. 2 filed an appeal against that judgment which was allowed on 09.03.2009. As a result of appeal being allowed, the land which was sold by Respondent No. 3 on behalf of Petitioner No. 1 trust reverted back to the trust.
Two appeals were then filed one by the purchaser of the land and other by Respondent No. 3 against the judgment of the First Appellate Court and those appeals are stated to have been admitted by Punjab & Haryana High Court. The appeals are stated to be still pending before the High Court.
In their written synopsis, Respondents No. 1 & 2 have alleged that in April, 1987, a land measuring 12.78 acres was purchased in the name of Petitioner No. 1 Trust in Village Deeg, Ballabgarh and Respondent No. 3 Lt. Gen(retd.) Prem Sagar was entrusted with the responsibility of looking after the land. It is further alleged that Respondent No. 3 entered into an agreement to sell with Shri Bijender Singh for a total consideration of Rs. 44,80,000/- and also received Rs. 4,80,000/- as earnest money. When Respondent No. 2 who at that time was abroad, returned to India, he was informed by Respondent No. 3 that the price of the land having fallen, the land had been sold for a total sum of Rs. 19,20,000. However, on enquiry, Respondent No. 2 came to know that in fact the land had been sold for Rs. 44,80,000/- and the balance amount had been pocketed by Respondent No. 3. It is further alleged that the amount of Rs. 19,20,000/- was deposited in Account No. 2877 of Petitioner No. 1 with Punjab & Sind Bank of Vasant Vihar Branch from where an amount of Rs. 16,16,612.30 was transferred to the account of Respondent No. 1 with the same bank and later a further sum of Rs. 3,08,000/- was transferred by Respondent No. 3 in favour of Respondent No. 1. The transfers are alleged to be in violation of Clause 4 of the Trust Deed of Petitioner No. 1. The case of Respondents No. 1 & 2, therefore, is that in fact the Petitioners have no cause of action against them since land in question was sold only by Respondent No. 3 who later on transferred that amount to the account of Respondent No. 1.
Since the Respondents have not produced any evidence to show that the Petitioners possess sufficient means to pay the prescribed court fee, I see no reason to disbelieve the deposition of PW-1 in this regard, which also finds collaboration from the statement of the bank officials. The balance in the account of Petitioner No. 1 was less than Rs. 1,000/- when the bank official was examined in the Court. There is no evidence of any movable or immovable property being owned by Petitioner No. 1. The individual assets of Petitioners No. 2 & 3 cannot be taken into consideration since they are suing in their capacity as the trustees of Petitioner No. 1 and not in their individual capacity. Explanation III to Order 33 Rule 1 of CPC provides that where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. It is thus quite obvious that the Petitioners do not possess requisite means to pay the court fee required to be paid in a suit for recovery of Rs. 26,39,296/-.
Though the case of Respondents No. 1 & 2 is that the petition discloses no cause of action against them, the case of the Petitioners as set out in the petition is that there was connivance between Respondents No. 2 & 3 for sale of the land belonging to Petitioner No. 1. Learned Counsel for the Petitioners has drawn my attention to a letter dated 27.05.2009 written by Punjab & Sind Bank to Respondent No. 2 Baldev Krishan Bhandari, stating therein that the money to Saving Bank Account 2896, which is the bank account of Respondent No. 1 Pran Bhandari Memorial Charitable Trust was transferred on his instructions. At this stage, the Court cannot go into truthfulness of the case set up by the Petitioners in this regard and, therefore, it cannot be said that the petition does not disclose any cause of action qua Respondent No. 2. As far as Respondent No. 1 is concerned, since the money from the account of Petitioner No. 1 has been transferred to its account, it cannot be claimed that the Petitioners have no cause of action against it. Respondent No. 3 having sold the land on behalf of Petitioner No. 1 it can hardly be disputed that the petition does disclose a cause of action against him.
In view of the above discussion, the Petitioners are granted permission to sue as indigent persons. The petition be registered as suit.
Summons for settlement of issues be issued to the Defendants on filing of process fee for 9th February, 2011. The matter be listed before the Joint Registrar on that date for completion of pleadings and admission/denial of documents.
IA 15705/2008
This application is dismissed as not pressed.