IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 FAO.No. 57 of 2010() -------------------- OS.133/2004 of SUB COURT, KATTAPPANA .................... APPELLANT/PETITIONER IN I.A. 1003/2009 AND PLAINATIFF IN THE SUIT ---------------------------------------- GANESHAN, AGED 54 YEARS, S/O.THANKAMONY, HOUSE NO.CP VIII/331, CHAKKUPALLAM, MANGAVILA KARA, CHAKKUPALLAM. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT/RESPONDENT IN THE I.A. AND DEENDANT IN THE SUIT ------------------------ K.T.THOMAS, AGED 55 YEARS, THEKKEKADAPLACKAL HOUSE, KUMALI KARA, KUMILY P.O., KUMAL VILLAGE PERUMEDE – TALUK. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ F.A.O.No. 57 OF 2010 ------------------------ Dated this the 10th day of March, 2010 JUDGMENT Pius C.Kuriakose, J. This appeal is directed against the order of the Subordinate Judge's Court, Kattappana, dismissing an application filed by the appellant for permission to continue with the suit as an indigent person. The suit was filed by the appellant for recovery of a sum of Rs.2,93,951/- with interest and cost. At the time of filing of the suit, the appellant remitted 1/10th of the court fee payable as per Section 4A of the Court Fees and Suits Valuation Act. Later when he was called upon to remit the balance court fee, he filed the present I.A. invoking order 33 Rule 1 CPC. The learned Sub Judge in the first instance dismissed the application on finding that the appellant had already received a sum of Rs.4,27,000/- from the respondent and that there was no convincing evidence to believe the appellant who contends that he had paid the entire amount to his employees. This court, however, on considering FAO.No.7/2006 set aside that order and remanded the I.A. to the Sub Court giving opportunity to the FAO No.57/2010 2 appellant to adduce evidence for substantiating his contention that he had paid the sum of Rs.4,27,000/- received by him to his employees. After remand, the appellant got himself examined again. The appellant filed a proof affidavit and he was cross examined by the respondent with reference to that. Barring such oral evidence, he did not adduce any evidence and much less produced documentary evidence which will show that his contention that he had paid off the sum of Rs.4,27,000/- to his employees is correct. The learned Sub Judge was not at all impressed by the further oral evidence given by the appellant and by the impugned order dismissed the I.A. holding that, not withstanding the opportunity given by the High Court, the appellant has not chosen to adduce any convincing oral or documentary evidence. 2. In this appeal, the appellant has raised various grounds challenging the order passed by the learned Sub Judge. Sri.S.Sachithananda Pai, learned counsel for the appellant, addressed us on the basis of those grounds. 3. We have anxiously considered the submissions of Sri.S.Sachithananda Pai and we have gone through the impugned FAO No.57/2010 3 order. We have also gone through the further evidence which was adduced by the appellant before the Court below as copy of the same was given to us. We are of the view that the further evidence adduced by the appellant before the court below pursuant to the order of remand passed by this court is not convincing enough to prove the appellant's contention that he had paid off the sum of Rs.4,27,000/- received by him to his employees. If, as a matter of fact, the appellant had paid off the above amount to his employees, as contended by him, there must have been some documents at least self serving ones to prove the same. We have also noticed that the appellant, at the time of filing the case, did not have a case that he was incapable of paying the balance court fee. The appellant was unable to make out any sudden change in his financial position between the period of institution of the suit and the time of filing of the present application under Order 31 Rule 1 CPC. In short, we are of the view that there is no infirmity about the order passed by the learned Sub Judge. At the same time, we feel that some more time can be granted to the appellant for remitting the balance court fee. Hence, even as we confirm the FAO No.57/2010 4 impugned order and dismiss the FAO, we grant to the appellant time till 9/4/2010 for remitting the balance court fee. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk