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TMI Blog1998 (2) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure, 1908. Proceedings accordingly were conducted before the Prothonotary and Senior Master as per Chapter XIII of the Rules of High Court of Judicature, Bombay on the Original Side read with Order XXXIll, Rule 1 of the Code of Civil Procedure. In these proceedings, the plaintiff was examined on oath, in which he stated that he was not possessed of sufficient means and therefore, he was applying for leave to sue as an indigent person. 4. The plaintiff has staled on oath that he did not have any source of income, that he was getting ₹ 400/- per month from the Cancer Patients' Aid Society, Bombay, but was required to spend more than ₹ 1,500/- per month for his maintenance and medical treatment. He had further stated that he did not have or own any property either moveable or immovable. He had mentioned about a Savings Bank Account No. 5815 with the United Western Bank Limited, Borivli (West) Branch, Bombay, which showed credit balance of ₹ 269.45 paise as on 20th February, 1992. He further stated that the Schedule of Property annexed to the pauper petition was correct. 5. Defendant Nos. 1 and 2 did not participate in those proceedings before the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sand at the Reception Desk as a receptionist, though it was a very short stint. Defendants have further highlighted plaintiff's deposition at pages 115 to 120. In paragraphs 107, 108 and 109 the plaintiff, during the course of his cross-examination, has come out with some of the admissions about his teaching in the Institution by name Teaching Centre which is being run at his residence. It is also admitted by him that, possibly once or twice, some handbills were printed for advertising this Teaching Centre . He has also admitted that there is no record or Account Book pertaining to this Teaching Centre , and that, the fees are received in cash as well as by cheques and that, the cheques are received blank sometimes, and that sometimes his brother Sainath puts his name, and sometimes when plaintiff needs money, his name is put. It is also admitted that when the cheque is not blank, the cheque is either in his brother's name or in his name. It is also admitted by him that when fees are received in cash, they are deposited most probably in his brother's account, and sometimes in his account also. The account number is given by him as Account No. 1394 in South India C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff in the year 1991 just because the plaintiff wanted to file this suit forma pauperis, and wanted to show falsely that it was not he, but his brother who was running these classes. 11. Mr. Ketan Parikh, appearing for defendant Nos. 1 and 2, and Mr. Merchant, appearing for defendant No. 3, both drew my attention to paragraph 31 on page 18 of the petition. The averments in this paragraph are as follows: The plaintiff has no independent source of earning, nor does he have any savings or inherited property. Plaintiff does not own any immovable property nor does he own any shares, fixed deposits, debentures or any other securities. Plaintiff is not earning nor does he have the physical fitness to earn. The total property of the plaintiff is less than ₹ 1,000/-. Defendants' Advocates submitted that these averments in the plaint are totally false. They drew my attention to the plaintiff's deposition in para 53 on page 40 of the Notes of Evidence, which reads as follows: At the time of my father's death (in May, 1980), he left following assets; the house where we at present stay, which is a villa type house, moderate Bank balance, which was drained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- approximately. 13. My attention is also drawn to internal page No. 7 of Exhibit D-3/3 collectively. These are the case papers of Tata Memorial Hospital, on which the plaintiff himself is relying. Page No. 7 is the original document from Tata Memorial Hospital. Questions were put to the plaintiff during the course of cross-examination by Mr. Parikh, appearing for defendant Nos. 1 and 2, about this document. This evidence is appearing in para 176 on page 195 of the Notes of Evidence. In this paragraph, the plaintiff admitted that the questions were put to him and his family members, while filling up this document, but that, he did not remember who answered these questions. He also stated that he did not remember whether the form was read out to him before the signature was put on it. When page 7 of Exhibit D-3/3 (collectively) was shown to the plaintiff, which categorically mentions plaintiff's income as ₹ 1,100/-, the plaintiff stated that he could not say why his brother mentioned ₹ 1,100/-, and further added that that must be his (his brother's) income. He also stated further that he could not say what was the income of his brother in November, 1985 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates. Plaintiff's Advocate Mr. Mihir Desai did try to argue in vein that when the proceedings were being conducted before the Prothonotary and Senior Master, defendant Nos. 1 and 2 did not even bother to remain present, and that, they are trying to de-pauperise the plaintiff by raising this point at this stage. Mr. Desai for plaintiff also relied upon Smt. Balwant Kaur v. Jagdish Mitter and others, wherein it was held that sufficient means as contemplated by Rule 1 of Order XXXIII of the Code of Civil Procedure meant means which could enable the plaintiff to have sufficient liquid cash available for paying the Court Fee or property which could be easily convertible into cash. I wonder how this authority will help the plaintiff in proving his point. In the above mentioned case, suit was filed by the plaintiff for partition of the property and that property was the subject matter of the suit. The plaintiff was not even in possession of the suit premises to which she was claiming title. On this background, it was held by the Punjab High Court that it was exceedingly difficult to hold that such property could lawfully and justly be taken into account in considering whether she wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court, under these circumstances, came down heavily upon that person and held as follows: The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party. Observing thus, the Supreme Court in this case set-aside the decree, holding that it was vitiated by fraud. Relying upon this judgement of the Supreme Court, Advocate Mr. Merchant and Advocate Mr. Parikh argued that the plaintiff had inherited property of his father, he had some quantity of gold, which had come to his share, he held shares worth ₹ 12,000/- but that all this was withheld by him and not disclosed by him in para 31 of the plaint, and in the Schedule of Properties, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff to sue as forma pauperis can be withdrawn at a later stage. Order XXXIII, Rule 1 envisages the initial stage while Order XXXIII, Rule 9 envisages a later stage. 22. In the present case at hand, from the above discussion, it is clear that the plaintiff has indeed not disclosed in para 31 of the plaint, and in the Schedule Ex. LL annexed to the plaint, the true state of affairs whereby he was exempted from paying Court Fees which causes loss to the Exchequer. This conduct can certainly be said to be improper within the meaning of Order XXXIII, Rule 9(a). If averments in para 31 of the plaint are kept in juxtaposition with his statements elicited by defendants' Advocates during the course of his cross-examination, the improper conduct of the plaintiff becomes quite evident. He has made statements on oath in para 31 of the plaint, he has made statements on oath during the initial proceedings before the Prothonotary and Senior Master, wherein he has denied the existence of any shares, his share in the Immovable properly, his share in the gold, etc. In the Court, however, during the course of cross-examination, some of the admissions have come on record which go cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of the word means is explained as follows: The use of the word means shows that it is intended to cover and include all forms of realizable assets which can be converted into cash and as such can be used for financing the litigation. 25. The plaintiff did possess all such realizable assets which could be converted into cash and could be used for financing the litigation. If all this material which has now come on record would have been available during the course of proceedings before the Prothonotary and Senior Master or if the plaintiff had disclosed all this in his plaint, certainly, leave to sue as forma pauperis would not have been granted to him at all. 26. Defendants' Advocates have vehemently argued that by suppressing this material from the Court plaintiff has displayed improper conduct within the meaning of sub-clause, (a) of Rule 9 of Order XXXIII of the Code of Civil Procedure and that he has played fraud upon the Court. In my opinion, technically, there is nothing to disagree with the submissions of the defendants' Advocates Mr. Parikh and Mr. Merchant. It has to be concluded that the conduct of the plaintiff was certainly improper in no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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