IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 FAO.No. 333 of 2007() --------------------- OP.3/2005 of SUB COURT, MUVATTUPUZHA .................... APPELLANT/PETITIONER ---------------------------------------- JOLLY, S/O.CHACKO, KIZHAKKEVEETTIL MARADY KARA, MARADY VILLAGE, MUVATTUPUZHA. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): RESPONDENT ------------------------- BIJU @ ANTONY, S/O.ANTONY, PADATHU PARAMBIL HOUSE, NJARACKALKARA, NJARACKALKARA VILLAGE. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.333 OF 2007 -------------------------------------------------------- Dated 8th July 2009 Judgment RAMAN, J. This appeal is filed against the order dismissing a petition filed under Order XXXIII Rule 1 CPC. The contention of the appellant/petitioner before the court below is that he has no movable or immovable property other than the property shown in the schedule. The suit is filed for realisation of an amount of Rs.5,62,377/- from the defendant being the amount due to him in connection with the sale of 'anjili' timber to the defendant. He has no income or assets sufficient to pay the court fee. The respondent contended that the petitioner is having timber business. The appellant gave evidence as PW1. Ext.C1 is the report by the Village Officer. The court below found that though the appellant gave evidence in support of the petitioner's averments and said that he has no sufficient means to pay the court fee, an extent of 1 acre 31½ cents of property along with a house where the appellant is residing belongs to the father of FAO 333/07 2 the appellant. An annual income of Rs.18,000/- is fetched from the said property, as per the Village Officer's report and the appellant is taking that annual income. It is admitted fact that the suit is one for realisation of the amount of Rs.5,62,377/- from the defendant being the amount due to him in connection with the sale of 'anjili' timber to the defendant and also that the petitioner is doing timber business. He had no case that the said business was closed at any point of time. The court below after considering the materials before it came to the conclusion that the appellant has not proved to the satisfaction of the court that he has no means to pay the court fee. It is true that the extent of property in the name of his father cannot be taken into account in deciding the question as to whether the petitioner has sufficient means. But, incidentally, it is to be noticed that the Village Officer has stated that the income from the property belonging to his father, is taken by the petitioner. The fact remains that the appellant had filed the suit for realisation of the sales consideration in connection with the sale of anjili tree. The specific case of the respondent in the counter affidavit is that the FAO 333/07 3 petitioner is having timber business. Neither in the affidavit nor in the evidence, the appellant had a case that he has closed the business subsequently nor did he adduce any proof thereof. In such circumstances, the finding of the court below that the appellant has not established that he has no means to pay the court fee, cannot be interfered with. We find no merit in the appeal and it is accordingly dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 333/07 4