IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 FAO.No. 155 of 2006 ----------------------- IOP.44/2001 of SUB COURT,ERNAKULAM .................... APPELLANT/INDIGENT PETITIONER: ----------------------------------------- CHAGANRAJ RANKA, SON OF DHUDAJEE, AGED 65, RESIDING AT H.No.39/311, ASARI LANE, KARIKAMURI, ERNAKULAM - 682 011. BY ADV. SRI.SREELAL N.WARRIER RESPONDENTS/RESPONDENTS: ----------------------------------- 1. SRI. ANRAJ RANKA, SON OF CHAGANRAJ RANKA, AGED 40 YEARS, BUSINESS MAN, RESIDING AT XXXVIII/826, T.D. ROAD, ERNAKULAM - 682 035. 2. SMT. HEMALATHA, AGED ABOUT 38 YEARS, W/O. ANRAJ RANKA, H.No.XXXVIII/826, T.D. ROAD, ERNAKULAM, COCHIN - 35. 3. M/S. RAJ DISTRIBUTORS, XL/7847 B, 1ST FLOOR, BALAJI TOWERS, T.D. ROAD, ERNAKULAM - 35, REP. BY ITS PROPRIETRIX SMT. HEMALATHA. 4. SR. BHAWARLAL CHOPRA, AGED ABOUT 60 YEARS, BUSINESSMAN, S/O. MULTANMAL CHOPRA, C/O. SHA MULTANMAL BHAWARLAL, CLOTH MERCHANTS, A.M. LANE, BANGALORE - 560 053. 5. SRI. C.P. JAIN, AGED ABOUT 50 YEARS, PAPER COMBINES, KATSON BUILDING, M.G. ROAD, POST BOX No.3216, ERNAKULAM, COCHIN - 35. FAO.No. 155/2006 ...2... 6. SRI. ASHOK KUMAR, AGED ABOUT 38 YEARS, MEDICAL REPRESENTATIVE (BAL PHARMA LTD.), HOUSE No.14/334, THEKKUMKUDI, PERUMBAVOOR P.O., ERNAKULAM. 7. SRI. ANAND, AGED ABOUT 38 YEARS, PROPRIETOR, M/S. A.J. ASSOCIATES, C.C. No.39/2560, CHURCH LANDING ROAD, ERNAKULAM. 8. DENA BANK, M.G. ROAD, ERNAKULAM, COCHIN - 16, REP. BY ITS ERNAKULAM BRANCH MANAGER. 9. LORD KRISHNA BANK LTD., M.G. ROAD, ERNAKULAM, REP. BY ITS MANAGER. 10. BANK OF RAJASTHAN, M.G. ROAD, ERNAKULAM, COCHIN - 16, REP. BY ITS MANAGER. 11. BHANWARI DEVI, S/O. BHAWARLAL CHOPRA, C/O. SHA MULTANMAL BHAWARLAL, CLOTH MERCHANT, A.M. LANE, CHICKPET, BANGALORE - 560 053 ADV. SRI.S.R.DAYANANDA PRABHU FOR R9 SRI.PHILIP T.VARGHESE FOR R8 SRI.THOMAS T.VARGHESE FOR R8 SMT.ACHU SUBHA ABRAHAM FOR R8 SRI.C.V.BIMAL ROY FOR R1 TO R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ------------------------------------------ F.A.O. No.155 OF 2006 ------------------------------------------ Dated this the 12th day of January, 2009. J U D G M E N T Kurian Joseph, J. This is an appeal filed against the order dated 19.06.2006 in IOP No.44/2001 on the file of the Sub Court, Ernakulam. Petitioner is the appellant. He is the plaintiff in the suit. The respondents are the defendants. The suit was filed praying for a direction to defendants 1 to 7 to render accounts and pay the plaintiff the amounts that have been misappropriated by them with interest and other reliefs as well. 2. The suit was valued at Rs.7,07,41,145/-. The court fee payable was Rs.8,27,006/-, according to the plaintiff. It was submitted that the plaintiff was not in possession of sufficient means to pay the court fee and hence he filed a petition under Order XXXIII Rule 1 of the Code of Civil Procedure for permission to sue as an indigent person. That petition was dismissed and hence the appeal. F.A.O. No.155/06 2 3. On going through the impugned order, we find that the rejection is mainly on the ground that the petitioner-plaintiff had suppressed the material facts in the application for permitting him to file the suit as an indigent person. Apparently, the learned Sub Judge has observed that the petitioner-plaintiff was residing in a rented building and he had only wearing apparel and bed Rs.320/- with him. However, in cross examination, it has come out that the petitioner is possessed of immovable property in Madras and other shares. There is also a Bank account wherein at the relevant time an amount of Rs.1,70,000/- was available. According to the petitioner, that money was sent by his daughter for his treatment to cardiac problem. 4. We are afraid on going through the records and having heard the parties that the learned Sub Judge has not adverted to the facts properly. In the proof affidavit filed by the petitioner, it has been disclosed that he has assets to the tune of Rs.8,50,245/- including the Bank account. But whether those are convertible to liquid cash for raising sufficient funds for the purpose of litigation is the crucial question. It is now settled law F.A.O. No.155/06 3 that a person cannot be compelled to dispose of his immovable property including the suit property for the purpose of raising funds for the litigation. But, at the same time, if during the pendency of the litigation also, in case it is brought to the notice of the court that the indigent person is in possession of sufficient means, the court is free to invoke its power under Order XXXIII Rule 9 of CPC and withdraw the permission, and compel the plaintiff to pay the court fee. Therefore, there is no justification at all in dismissing the petition on the ground of suppression of material facts. It is not a case of suppression of material facts. It is a case where the petitioner-plaintiff had disclosed his assets. 5. At the time of filing of the suit, only 1/10th of the court fee is payable. Whether the person concerned is possessed of sufficient means to pay that much court fee and pray for continuance of the suit as an indigent person for the rest of the court fee and whether the person can be permitted to pay the funds available with him for the purpose of court fee and continue the suit for the purpose of rest of the amounts payable as court fee are also questions to be addressed by the court below. Since F.A.O. No.155/06 4 no such questions have been addressed in the impugned order, we are of the view that the matter requires fresh consideration. Accordingly, we set aside the order under appeal and remit the matter to the court below for fresh consideration adverting also to some of the areas observed by us in this judgment. The parties will appear before the court below on 12.02.2009 and thereafter the application shall be disposed of, expeditiously. Registry will send back the records immediately to the court below. The appeal is disposed of as above. KURIAN JOSEPH JUDGE P.R. RAMACHANDRA MENON JUDGE smp F.A.O. No.155/06 5 KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. F.A.O. No.155 OF 2006 J U D G M E N T 12.01.2009