IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 FAO.No. 41 of 2005() -------------------- OP.76/2000 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PETITIONER: ------------------------------------- INDIRA SADANANDAN, KRISHNA BUNGLOW, KAZHAKKOOTTAM P.O. THIRUVANANTHAPURAM. BY ADV. SRI.B.RAGUNATHAN SRI.V.V.MATHEW SRI.M.SALIM RESPONDENT(S): COUNTER PETITIONER: ------------------------------------------------------------ 1. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM 35. 2. THE KERALA FINANCIAL CORPORATION, REP. BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM 10. ADV. SRI.L.MOHANAN, SC, KFC FOR R2 GOVERNMENT PLEADER SRI. LAXMI NARAYANAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 41 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2009. JUDGMENT Bhavadasan, J, The plaintiff, whose application for suing as informa pauperis was dismissed by the court below, is the appellant. 2. The suit was one for damages. The court fee payable was Rs.1,10,800/-. The plaintiff pointed out that she was incapable of raising funds for paying court fee and she did not have the means to pay the same. Petitioner, who sued as informa pauperis, had scheduled the assets, which she possessed at the relevant time. The immovable property she owned was under attachment. Therefore she is precluded from disposing of the same. In the light of the above facts, she wanted to lay the suit as indigent person. 3. The first respondent, State, did not choose to contest. However, the second respondent Kerala Financial Corporation opposed the petition. It is pointed out by them that the plaintiff had filed several suits earlier and all of them were FAO.41/2005. 2 dismissed. They took up the contention that the present suit is filed with malafides. They also contended that the petitioner had obtained order from the High Court, but she did not comply with the condition therein, and that the attempt is to delay the revenue recovery proceedings. Pointing out that the plaintiff had sufficient means to pay the court fee, they prayed that the application be dismissed. 4. The court below, on the basis of the materials before it, came to the conclusion that the claim of the plaintiff that she was unable to pay the court fee was established and held that she could sue as informa pauperis. But the court then went on to hold that the suit was barred by limitation and therefore based on Order 33 Rule 5(f) of the Code of Civil Procedure dismissed her petition. The said order is assailed. 5. Learned counsel appearing for the appellant pointed out that the court below was not justified in going in depth regarding the issue relating to limitation. The question as to whether the suit was barred by limitation has to be considered in the light of the averments contained in the petition and an indepth enquiry into the same is not FAO.41/2005. 3 contemplated at that stage. It is also pointed out that in a case regarding payment of court fee party respondents have no role to play. 6. It may be noticed that the court below was inclined to hold that the plaintiff did not have sufficient means to pay the court fee. Order 33 Rule 5 deals with grounds on which the application could be rejected. Order 33 Rule 5(f) provides that if the allegation made in the application show that the suit was barred by any law in force, then the application is to be dismissed. 7. In the case on hand, the suit was one for damages. It appears that the movables of the petitioner before the court below was attached in revenue recovery proceedings. The petitioner complained that the movables belonged to her and for the amount due from her husband, her properties could not be attached. It was her contention that several of the articles seized in the revenue recovery proceedings later turned out to be unusable and therefore she is entitled to claim damages. Damages were claimed under several other heads also. 8. The respondents before the court below pointed out that viewed from any angle it could be seen from the averments in the FAO.41/2005. 4 application that the suit is barred. The court has noticed that if Section 81 of the RR Act is taken aid of by the petitioner, the period available to lay the suit is only 60 days. Assuming that Article 80 of the Limitation Act applied, the petitioner had only one year from the date of seizure to lay the suit. The court below also considered Article 91 (b) of the Limitation Act and came to the conclusion that under that provision also the suit is barred. 9. Learned counsel appearing for the appellant pointed out that the date of cause of action mentioned in the application to sue as indigent person is 24.10.1997, that is the date on which the petitioner came to know about the condition of the movable articles. Therefore, the time begins to run from that date onwards. 10. It is difficult to understand how the above contention could help the plaintiff, even assuming that she could taken up such a contention. Articles were seized much earlier. The petitioner came to know that her movables were detained by the respondent on 24.10.1997. The seizure of the movable articles under the RR Act was on 3.7.1995. The claim of the petitioner that time begins to run from FAO.41/2005. 5 24.10.1997 cannot be accepted. Even assuming that the plaintiff could take aid of the said date, the plaintiff would get only one year from that date. The suit was filed only in 2001. The court below had also found that going by Articles 80 and 91 of the Limitation Act the suit is hopelessly barred by limitation. The court below has considered all the aspects and had come to the conclusion that the petition cannot be entertained. 11. It is true that in the decision reported in Asokan v. Western India Plywoods Ltd. (1987(1) KLT 89) a Full Bench of this Court considered the facts arising in this case when an application to sue as informa pauperis is considered. It was held that the deep probe into the question of limitation is not warranted at that point of time. One need not consider the question in detail and no evidence need be taken at that stage. In the light of the allegations in the application if the suit prima facie appears to be barred, then Order 33 Rule 5(f) can be taken aid of. In the case on hand the court below considered the averments in the application filed by the petitioner. In the decision in FAO.41/2005. 6 Mechantile Credit Corporation v. Sathyan (1997(1) KLT 384) it was held that the respondents in the petition of the present nature can point out that the suit is barred by limitation and therefore the application to sue as informa pauperis may not be entertained. It is not possible to say in the light of the decision that the counter petitioners have no role to play. Of course, a consideration of the question of limitation in detail does not arise at the initial stage. But in the case on hand it was pointed out that from the dates stated in the petition, the suit is barred by limitation. No legal or factual infirmities are pointed out in the order and the order does not call for any interference. Appeal stands dismissed confirming the order of the court below. There will be no order as to costs. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. sb.