IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 OP(C).No. 1166 of 2010(O) -------------------------------------- POP.3/2005 OF I ADDITIONAL SUB COURT, THRISSUR .................... PETITIONER: ------------------- MARSON, AGED 49 YEARS, S/O.VENNATTUPARAMBIL CHERIAN, CHENGALOOR P.O., CHENGALOOR VILLAGE DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH). RESPONDENT(S): -------------------------- 1. MADHAVI, W/O.URUMBAN RAMAN, CHELAKKOTTUKARA DESOM, CHEMBUKKAVU VILLAGE, THRISSUR TALUK-680 001. 2. SANOJ, S/O.URUMBAN RAMAN, CHELAKKOTTUKARA DESOM, CHEMBUKKAVU VILLAGE, THRISSUR TALUK-680 001. 3. RAPPAY, S/O.KALLARIKKAL OUSEPH, CARMEL STREET, CHEMBUKKAVU VILLAGE, THRISSUR, THRISSUR TALUK-680 001. R1 BY ADV. SRI.K.P.ARAVINDAKSHAN. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 1166 of 2010(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORIGINAL PETITION P.O.P. NO.3/2005 ON THE FILE OF THE SUB COURT, THRISSUR DATED 10/01/2005. EXT.P2: COPY OF THE OBJECTIONS FILED BY THE PETITIONER HEREIN IN EXT.P1 DATED 03/01/2006. EXT.P3: COPY OF THE PROOF AFFIDAVIT AND THE CROSS EXAMINATION OF THE 1ST RESPONDENT HEREIN DATED 20/07/2010. EXT.P4: COPY OF THE ORDER PASSED IN POP NO.3/2005 DATED 13/09/2010 ON THE FILE OF THE SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1166 of 2010 -------------------------------------- Dated this the 18th day of October, 2011. JUDGMENT Third respondent in P.O.P.No.3 of 2005 challenges Ext.P4, order passed by the learned First Additional Sub Judge, Thrissur allowing 1st respondent/plaintiff to sue as an indigent person on a finding that she has no sufficient means to pay court fee payable in the suit – `1,10,400/-. According to the petitioner, evidence of 1st respondent as PW1 would show that apart from the property she has scheduled in the annexure to the plaint, she has other properties also. Learned counsel has invited my attention to Ext.P3, copy of the deposition of 1st respondent as PW1 where she has stated that she has a few cows and a gold thali. It is contended that those properties are not mentioned in the schedule to the plaint and thus, there is non-compliance of Rule 2 of Order XXXIII of the Code of Civil Procedure (for short, “the Code”) which should entail a rejection of the petition under Rule 5(a) of Order XXXIII of the Code. 2. Learned counsel for 1st respondent has contended that even if those items are also included it is not sufficient to raise necessary fund for payment of court fee. It is argued that the properties referred by the 1st respondent in her evidence are exempted from attachment under Section 60 of the Code and hence are to be excluded from assessing the means in view of Explanation (a) to Rule 1 of Order XXXIII of the Code. OP(C) No.1166/2010 2 3. Rule 2 of Order XXXIII states that the application for permission to sue as indigent person shall contain the particulars required in regard to plaints in suits and that “a schedule of any movable or immovable property belonging to the applicant, with the estimate value thereof” shall be annexed thereto. Referring to the said provision, a Division Bench of this Court in Mathew v. State of Kerala (1996 (2) KLT 363) stated that Rule 2 of Order XXXIII of the Code is clear that it contemplates scheduling of any movable or immovable belonging to the person who claims to be indigent and that whatever be the reason for not disclosing the same in the petition, on the wording of Rule 2 of Order XXXIII of the Code it is clear that the application is liable to be rejected in terms of Sub-rule (a) of Rule 5 of Order XXXIII of the Code. 4. Learned Additional Sub Judge has observed that the properties which the 1st respondent has stated in her evidence and not mentioned in the schedule annexed to the plaint are exempted from attachment and its non- mentioning is not fatal. 5. No doubt, Explanation (a) to Rule 1 of Order XXXIII of the Code states that in deciding whether a person is indigent or not, the property which is liable to be exempted from attachment in execution of a decree and the subject matter of the suit is to be excluded. But, I am inclined to think that it is for the court to decide whether a property which the indigent person possesses and OP(C) No.1166/2010 3 mentioned in the schedule is liable to be exempted from attachment in execution of the decree. I am not inclined to think that it is a matter which the indigent can decide and according to his decision, he can exclude such items from the schedule annexed to the plaint. Viewed in that line, 1st respondent (except the subject matter of the suit) was required to mention in the schedule all other properties which she stated, she possesses in her evidence as PW1. But I am not inclined to think that because of non-mentioning of those assets in the schedule annexed to the plaint it should result in a rejection of the plaint under Rule 5(a) of Order XXXIII of the Code. It is open to the court to permit 1st respondent to amend the plaint to include those items also in the schedule annexed to the plaint. Having regard to these aspects I am inclined to think that 1st respondent must be permitted to amend the schedule to the plaint to incorporate in that schedule those assets she stated, she has (at the time she gave evidence). I make it clear that it is open to the learned Additional Sub Judge to decide whether including those assets 1st respondent is entitled to sue as indigent person and whether any of those properties are exempted from attachment and to be excluded from assessing whether petitioner is an indigent person or not. OP(C) No.1166/2010 4 Resultantly with the observations and directions made above, this Original Petition is allowed. Ext.P4, order is set aside and P.O.P.No.3 of 2005 is remitted to the court of learned First Additional Sub Judge, Thrissur for fresh decision after giving opportunity to 1st respondent to amend the schedule to the petition suitably. THOMAS P.JOSEPH, Judge. cks