THE HON'BLE SRI JUSTICE A. GOPAL REDDY AND THE HON'BLE SRI JUSTICE RAJA ELANGO Writ Petition No.5303 of 2010

04-10-2010

Masarath Jahan Begum.

Smt Masood Hashin Ali and others

Counsel for petitioner : Sri Bojja Tarakam, Senior Counsel and Sri Rakesh Sanghi

Counsel for Respondent:(1) Sri P.Nageswar Sree for RR 3,6,14 & 16 (2) Government Pleader for Services-I for R-17

(3) Smt M.Bhaskara Lakshmi for R-18

(4) None appeared for remaining respondents

:ORDER: (Per the Hon'ble Sri Justice A. Gopal Reddy)

In this Writ Petition, the petitioner invokes the jurisdiction of this Court under Article 226 of the Constitution of India for setting aside the order dated 31.08.2009 passed in I.R.P.No.05 of 2009 by respondent No.18 i.e. the Ranga Reddy District Legal Services Authority, L.B.Nagar, and for a consequential direction to respondent No.18 to issue a Certificate under Section 13 of the Legal Services Authorities Act, 1987 (hereinafter referred to as - 'the 1987 Act') in her favour enabling her to institute a Suit for partition against respondent Nos.3 to 13 in accordance with the draft plaint submitted to the Legal Services Authority.

2. The facts, in brief, are that the petitioner filed a petition under Section 13(1) of the 1987 Act before respondent No.18 seeking legal aid by granting exemption of Court fee for an amount of Rs.14,65,355/- enabling her to institute a Suit for partition on the file of the District Court, Ranga Reddy District; that, according to her, O.S. No.42 of 1962 on the file of the I Additional Judge, City Civil Court, Hyderabad, was filed by her father late Hashim Ali Khan who died on 23.09.200; that in the final decree proceedings in I.A. No.854 of 1984 in O.S. No.42 of 1962, herself and respondent Nos.1 and 2 herein were brought on record as legal representatives of late Hashim Ali Khan and thus she is aware of all the proceedings and in the final decree dated 07.07.2005, towards the share of late Hashim Khan, an extent of Ac.1-22 gts in Sy.No.63 and separate extent of Ac.7-31 gts in Sy.Nos.68, 69 and 70 of Madhapur village, Serilingampally Mandal, was allotted and the entire extent of land including the suit schedule property was exclusively allotted to defendant Nos.3 to 16 therein in terms of the assignment recognised by the Court in I.A.No.479 of 1999 dated 22.04.1999 and that no appeal was preferred against the said final decree proceedings or assignment proceedings, as such, they became final and binding on the parties concerned.

In the final decree, it was also recorded that possession of the suit schedule property was already delivered to the assignees-defendant Nos.3 to 16. In the proposed Suit, it is prayed that a final decree for partition and separate possession by metes and bounds may be passed directing defendant Nos.1 to 16 therein and to deliver vacant and physical possession of the plaintiff's 29.16% share in the suit schedule lands bearing distinct revenue survey Nos.63, 68, 69 and 70 of Madhapur Village, Serilingampally Mandal, Ranga Reddy Distrit, totally admeasuring Acs.9-13 gts., to her and for other reliefs. It is also stated that the alleged assignment is void under various provisions of the Transfer of Property Act, 1882,

the Registration Act, 1908, and the Income Tax Act and that there is no provision in the Code of Civil Procedure prohibiting institution of a second Suit for partition of joint family properties when the first Suit has not culminated into a valid decree as contemplated by law. It is claimed that the plaintiff is entitled to sue the defendants for partition as she is entitled to 29.16% share; defendant No.1 is entitled to 12.5% share, and defendant No.2 is entitled to balance of 58.33% share in the suit schedule property and sought for exemption of payment of Court fee of Rs.14,65,355/- on the ground that she being a woman, according to Chapter-IV of the 1987 Act, is entitled to legal aid and enclosed the draft plaint along with the said application.

3. Chapter-IV of the 1987 Act deals with entitlement to legal services. Section 12 thereof deals with criteria for granting legal services. According to Section 12(c) thereof, a woman or a child irrespective of financial status is entitled to legal services. According to Section 13(1) thereof, a person who satisfies all or any of the criteria specified in Section 12 shall be entitled to receive legal services provided that the authority concerned is satisfied that such person has prima facie case to prosecute or to defend. Along with the petition, she also filed copies of plaint in O.S. No.42 of 1962 on the file of the I Additional Judge, City Civil Court, Hyerabad, filed by her father; preliminary decree in O.S.No.42 of 1962; Assignment Deed dated 06.10.1997 executed by the petitioner's father in favour of R3 to R16 in respect of suit schedule property; final decree in I.A. No.854 of 1984 in O.S. No.42 of 1962 dated 07.07.2005 etc. The learned Senior Civil Judge - cum - Secretary, District Legal Services Authority, Ranga Reddy District, by the order impugned held that in the final decree proceedings in I.A.No.854 of 1984, the petitioner and respondent Nos.1 and 2 were brought on record as legal representatives of late Hashim Ali Khan and, thus, she is a party to the final decree proceedings in I.A.No.854 of 1984 and is aware of all the proceedings in I.A.No.854 of 1984 and assignment of the suit schedule property in favour of respondent Nos.3 to 16 therein vide final decree dated 07.07.2005 and no appeal is preferred against the said final decree proceedings or assignment proceedings in I.A.No.479 of 1999 and they became final and binding on the parties concerned and the principles of res judicata as enunciated in Section 11 of the Code of Civil Procedure also applies to the present case and thus the petitioner has not made out any prima facie case to institute a second Suit for partition of the property and she is not entitled to legal aid as sought and, therefore, rejected the petition. Questioning the same, the present Writ Petition is filed.

4. Sri Bojja Tarakam, learned Senior Counsel appearing for the petitioner, strenuously contended that since the petitioner is a woman and under Section 12(c) of the 1987 Act, a woman or a child who has to file or defend a case is entitled to legal services under that Act, she is entitled to the legal services under that Act and when she is entitled to legal services, she cannot be denied of the benefit on the ground that she is a party to the previous proceedings on the same suit schedule property and the principles of res judicata bars institution of a second Suit, as the same have to be gone into and decided by the Civil Court in the Suit proposed to be instituted by the petitioner, if necessary, when the issues are settled.

5. He further submits that Section 29-A of the 1987 Act confers powers on the State Authority to make Regulations and, accordingly, the Andhra Pradesh State Legal Service Authority Regulations, 1996 (hereinafter referred to as - the Regulations), were brought into force. Under Regulation 25 of the Regulations, the legal services admissible under these regulations shall be in all or any of the modes mentioned therein. Regulation 25(b)(ii) of the Regulations deals with payment of court fee to the person entitled or on his behalf and other expenses. Regulation 11 of the Regulations deals with the additional functions of the District Authority in addition to the functions assigned to it under the 1987 Act and, as per clause (7) thereof, a duty cast upon the District Authority to receive applications for legal services and ensure that every application is promptly processed and disposed of and, as per clause (8) thereof, to consider the cases brought before it for legal services including pre-litigation matters and decide as to what extent legal services can be made available to the applicant. Regulations 19 and 20 of the Regulations deal with receiving and scrutiny of the applications for legal services which do not prohibit extending of legal services on the ground of res judicata. Rules are framed under the 1987 Act, known as the Andhra Pradesh State Legal Services Authority Rules, 1995 (for short - 'the Rules'), to regulate the procedure under that Act and execution of the awards passed by the Lok Adalats. In view of the proviso referred to above, it is contended that rejection of the claim for exemption of payment of court fee by the legal services authority is not valid and the same is liable to be set aside.

6. In this connection, he placed reliance on the judgment of the Apex Court in V.RAJESHWARI v.

T.C. SARAVANABAVA1, wherein it is stated that the rule of res judicata does not strike at the root of the jurisdiction of the court trying a subsequent suit; that it is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same; and that the plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found and it is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried.

7. Whether the final decree passed in the earlier partition suit operates as res judicata for the subsequent suit proposed to be instituted by the petitioner herein or not, need not be gone into and decided by us in this writ petition. We are only concerned with the question whether the petitioner, as a matter of right, is entitled to legal aid by way of exemption for payment of court fee under Chapter IV of the 1987 Act. In view thereof, though the learned counsel for the petitioner placed reliance on the decisions in STATE OF KERALA v. MATHAI VARGHESE AND OTHERS2, M/s. NEELAM WINES, HYDERBAD v. COMMISSIONER OF POLICE, CHATTA BAZAR, HYDERABAD3, WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION v. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION4, M/S. GIRDHARI LAL AND SONS v. BALBIR NATH MATHUR AND OTHERS5, BHARAT CO-OPERATIVE BANK (MUMBAI) LIMITED v.

CO-OPERATIVE BANK EMPLOYEES UNION6, CHIEF INSPECTOR OF MINES AND ANOTHER v. KARAM CHAND THAPAR7, THE MARTIN BURN LIMITED v. THE CORPORATION OF CALCUTTA8, SRI NASIRUDDIN v. STATE TRANSPORT APPELLATE TRIBUNAL9, K.B. SAHA & SONS (P) LTD. v. DEVELOPMENT CONSULTANT LTD.10, K. BHASKARAM v. MOHAMMAD MOULANA (DIED) PER L.Rs.11, AVINASH KUMAR CHAUHAN v. VIJAY KRISHNA MISHRA12, SOM DEV v. RATI RAM13, AMBIKA PRASAD THAKUR AND OTHERS v. RAM EKBAL RAI (DEAD) BY HIS L.Rs. AND OTHERS14, SAIYAD MOHAMMAD BAKAR EL-EDROOS (DEAD) BY L.Rs. v. ABDULHABIB HASAN ARAB AND OTHERS15, M.L. SUBBARAYA SETTY AND OTHERS v. M.L. NAGAPPA SETTY AND OTHERS16, HAMEED JOHARAN (D) AND OTHERS v. ABDUL SALAM (D) BY L.Rs. AND OTHERS17, Dr. CHIRANJI LAL (D) BY L.Rs. v. HARI DAS (D) BY L.Rs.18, PREM SINGH v. BIRBAL19, RAMESH B. DESAI v. BIPIN VADILAL MEHTA20, COMMISSIONER OF INCOME TAX v. M/s. HINDUSTAN BULK CARRIERS21,

Y. SIDDA REDDY v. GOVERNMENT OF ANDHRA PRADESH22, SUBHASH KUMAR LATA v. R.C. CHHIBA AND ANOTHER23 and YANALA MALLESHWARI v. ANANTHULA SAYAMMA24, as they do not relate to the point to be decided by us in this writ petition, they need not be looked into.

8. As stated supra, Chapter-IV of the 1987 Act deals with criteria for entitlement of legal services. Section 12 thereof is one of the most important sections and it lays down the conditions of eligibility and entitlement to legal services and makes it clear that every person is not entitled per se to the legal services but only those sections of the society, weaker socially, economically and otherwise. As per clause (c) of Section 12, a woman or a child is entitled to legal services. Section 13 thereof deals with entitlement to legal services, which reads as under:

"(1) Person who satisfy all or any of the criteria specified in section 12 shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend. (2) An affidavit made by a person as to his income may be regarded as sufficient for making him eligible to the entitlement of legal services under this Act unless, the concerned Authority has reason to disbelieve such affidavit."

9. Sub-section (1) of Section 13 of the 1987 Act postulates that for a person to be entitled to legal services he/she should have the prima facie case to prosecute or to defend; and sub-section (2) thereof postulates that the person who seeks legal services has to file an affidavit showing his/her income for making him/her eligible to the legal services under that Act. Regulation 25 of the Regulations provides modes of legal services and advice. Regulation 25(b)(ii) thereof provides for payment to the entitled person or on his behalf- (a) of court fee;

(b) of process fee and expenses of witnesses;

(c) of charges for preparation of paper books, including charges for Printing and translation of documents;

(d) of charges for the supply of certified copies of judgment, decrees, orders and other documents;

(e) of any amount on any other account in any legal proceedings." Section 68 of the Andhra Pradesh Court-fees and Suits Valuation Act, 1956 (for short - 'the 1956 Act'), lays down that the State Government may, by notification in the Andhra Pradesh Gazette, reduce or remit, in the whole or in any part of the territory of this State all or any of the fees chargeable under this Act, and may, in like manner, cancel or vary such notification. The Government of Andhra Pradesh, in exercise of the powers conferred by Section 68 of the 1956 Act, issued G.O.Ms.No.350 Home (Courts.D) Department, dated 17.06.1982, remitting in the whole of the State of Andhra Pradesh the fee chargeable in respect of any proceeding including suits and appeals initiated before any court by 'Aided Person' as defined in Rule 2(b) of the Andhra Pradesh State Legal Aid and Advice to the Poor Rules, 1980 and directing that where the said Aided Person succeeds, the amount of court fees which would have been paid by him if such fee is not remitted shall be determined by the court and the amount, so determined, shall be recoverable by the State Government from any party ordered by the Court in the decree to pay the same. Subsequently, after enactment of the 1987 Act, the Government of Andhra Pradesh through G.O.Ms.No.73 Law (LA&J-Home-Courts.D) Department, dated 19.06.2007, exempted payment of Court fee payable by the persons entitled and provided with Legal Services under Sections 12 and 13 of the 1987 Act read with Rule 16 of the Rules and Regulation 25 of the Regulations in the whole of State of Andhra Pradesh in respect of any proceeding including suits, appeals, etc., initiated before any Court or Tribunal including the Andhra Pradesh Administrative Tribunal, however, directing that where the said person succeeds in the proceedings, the amount of Court fees, which would have been paid by him, shall be recovered by the State Government from the party ordered by the Court in the decree to pay the same. Subsequently, the Government of Andhra Pradesh also issued G.O.Ms.No.86 Law (LA&J-Home-Courts.D) Department, dated 27.07.2007, substituting the expression "Legal Services Authorities Act, 1987" for the expression "Legal Services Authorities Act, 1982".

10. So, the scheme of the 1987 Act, the Rules and the Regulations made thereunder do not indicate axiomatic extension of legal aid to the persons notified under Section 12 therein. The persons who are notified in Section 12 of the 1987 Act and whose income may be regarded as sufficient for making him eligible to the entitlement of legal services are entitled to legal aid provided they satisfy that there exists a prima facie case. Therefore, on the mere ground that the petitioner is a woman, she is not entitled to the legal aid as a matter of right. In evaluating the prima facie case, the District Legal Services Authority is under obligation to go through the relief claimed by her, for which the legal aid is sought, to decide as to whether, for such a relief, she is entitled to the legal services or not and to judge whether there exists a prima facie case for granting legal aid and, in that connection, the Authority is entitled to go through the plaint averments and the earlier litigation. The said inquiry shall be confined only to the extent of judging whether the petitioner is entitled to the benefits by way of exemption of Court fee by issuing necessary certificate subject to his satisfying prima facie case. Any finding recorded about the prima facie case cannot operate as res judicata in the event of a civil Suit is instituted and the said finding is only for the purpose of granting benefits under the 1987 Act.

11. Therefore, after going through the impugned order passed by the District Legal Services Authority, we are satisfied on the inquiry conducted by the Authority for judging as to whether there exists a prima facie case and whether the petitioner is entitled to the relief of legal services as sought. In view of the findings recorded by the Authority in the impugned order, we are of the opinion that the petitioner is not entitled to legal aid by way of exemption for payment of court fee under Chapter IV of the 1987 Act and so the impugned order does not suffer from any manifest irregularity or infirmity warranting interference by this Court under Article 226 of the Constitution of India. The Writ Petition is devoid of merits and, hence, is liable to be dismissed.

12. With the above clarification, the Writ Petition is dismissed. There shall be no order as to costs.

?1 (2004) 1 SCC 551

2 AIR 1987 SC 33

3 AIR 1981 AP 191

4 AIR 1986 SC 458

5 AIR 1986 SC 1499

6 AIR 2007 SC 2320

7 AIR 1961 SC 838

8 AIR 1966 SC 529

9 (1975) 2 SCC 671

10 (2008)8 SCC 564

11 2005(6) ALT 670

12 AIR 2009 SC 1489

13 2007(1) SCJ 13

14 AIR 1966 SC 605

15 AIR 1998 SC 1624

16 AIR 2002 SC 2066

17 AIR 2001 SC 3404

18 AIR 2005 SC 2564

19 (2006) 5 SCC 353

20 (2006) 5 SCC 638

21 AIR 2003 SC 3942

22 2006(1) ALT 354(D.B.)

23 AIR 1989 SC 458