IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 CRP.No. 502 of 2008() --------------------- AGAINST THE ORDER DATED 17/03/2008 IN IA 5773/07 IN OS.484/2001 of I ADDL.SUB COURT,ERNAKULAM .................... REVN. PETITIONER: ------------------ P.THOMAS MATHAI, AGED 49 YEARS, THADAVILLA, CHANGAMPUZHA NAGAR P.O., KOCHI-33. BY ADV. SRI.N.C.JOSEPH RESPONDENTS: ------------- 1. JOSEPH ALLEN, S/O.THOMAS, AGED 52 YEARS, RESIDING AT J.M.CRESANT, FLAT NO.8B, BLOCK NO.1, 8TH FLOOR, P.J.ANTONY ROAD, MANGALAM, ERNAKULAM. 2. SHEELA ALEN, W/O.JOSEPH ALLEN, PALATHURUTHY HOUSE, VADUTHALA DESOM, CHERANALLOORE, NOW RESIDING AT J.M.CRASENT, FLAT 8B, BLOCK NO.1, 8TH FLOOR, P.J.ANTONY ROAD, MAMANGALAM, ERNAKULAM. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.502 of 2008 ------------------------------- Dated this the 30th June, 2008. O R D E R Petitioner is the plaintiff and respondents the defendants in O.S.No.484 of 2001, on the file of the First Additional Sub Court, Ernakulam. The suit was filed for realisation of the advance amount paid under agreement for sale. Petitioner instituted the suit as an indigent person. Subsequently, respondents filed I.A.No.5773/2007, an application under Order IX Rule 33 of Code of Civil Procedure for a direction to the petitioner to pay the court fee, contending that he is not an indigent person. As per order dated 17.3.2008, learned Sub Judge found that petitioner is admittedly owning a strip of land, the market value of which would fetch more than Rs.3 lakhs per cent, and in such circumstances, he has the capacity to pay the court fee, and he cannot be allowed to sue as an indigent person. The said order is challenged in this revision filed under Section 115 of the Code of Civil Procedure. 2. The learned counsel appearing for the petitioner was heard. CRP.No.502 of 2008 2 3. The argument of the learned counsel for the petitioner is that the finding of the learned Sub Judge is unsustainable, as a narrow strip of land which originally belong to the petitioner under the partition deed was assigned by him to his brother for Rs.30,000/= and the evidence of the petitioner as RW.1 before the trial court establish that petitioner has no subsisting right over the property, and, therefore, with that property, petitioner cannot raise any fund necessary for payment of court fee, and, hence the order is unsustainable. The learned counsel further argued that the evidence of the petitioner as RW.1 establish that brother of the petitioner has been in possession of that narrow strip of land, and as petitioner is not getting any advantage by keeping that property, the property was given to the brother and because of the relationship, no document was executed, and in such circumstances, learned Sub Judge should have found that petitioner is not to be disallowed to sue as an indigent person, and hence, the order is to be quashed. 4. On hearing the learned counsel and on going through the impugned order, I do not find any illegality or irregularity warranting interference. Learned Sub Judge found that even when examined as RW.1, petitioner admitted that property which lies to the CRP.No.502 of 2008 3 north of the property covered under Ext.B1 would fetch a market value of Rs.3 lakhs per cent. Ext.B1 also shows that it is the property belonging to the petitioner. Though learned counsel argued that the said statement in Ext.B1 should not be relied on, in the light of the evidence of RW.1, as rightly found by the learned Sub Judge, if there is a transfer of immovable property valued more than Rs.1000/=, it could only be by a registered document, and, therefore, the alleged transfer made by the petitioner cannot be accepted. In the light of the evidence, the court was justified in finding that petitioner has sufficient means to pay the court fee, as by mortgaging or alienating a portion of the strip of land, petitioner could raise the necessary court fee to be paid. Petitioner is permitted to pay the court fee within one month from today. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.