IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 FAO.No. 120 of 2010() --------------------- AGAINST THE ORDER DATED 16/03/2010 IN IA 230/2009 IN OP.32/2002 of SUB COURT, SULTHAN BATHERY .................... APPELLANTS/PETITIONERS/PLAINTIFFS 1, 3 TO 6: ------------------------------------------ 1. MAKKIMALA TEA ESTATE (P) LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT HAVING REGISTERED OFFICE AT 425, DEVAMBA AGRAHAR, MYSORE AND ADMINISTRATIVE OFFICE AT 16/14, 2ND CROSS, COIMBATORE REPRESENTED BY ITS PRESENT MANAGING DIRECTOR R.VENUGOPAL. 2. R.VARADARAJAN, S/O.K.RAMARAJ, AGED 53 YEARS, COMPANY EMPLOYEE, NOW RESIDING AT 53A, SOUTH STREET NO.2, AVARAMPALAYI, COIMBATORE. 3. R.VENUGOPAL, S/O.K.RAMARAJ, AGED 56 YEARS, NOW RESIDING AT 16/14, 2ND CROSS, SHOBHANAGAR, AVARAMPALAYAM, COIMBATORE-6. 4. S.RAMU, S/O.SOMASUNDARAM, AGED 38 YEARS, SOUTH STREET NO.2, AVARAMPALAYAM, COIMBATORE. 5. V.K.SUDHARAM, AGED 48 YEARS, VADAKKEPARAMBIL HOUSE, GOLDSMITH, VELIYANNOOR, KOTTAYAM DISTRICT. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. K.M.IBRAHIM, AGED ABOUT 68 YEARS, MAIN ROAD, SUNTICOPPA, COORG DISTRICT, KARNATAKA. 2. NAFEESA IBRAHIM, W/O.K.M.IBRAHAM, AGED 62 YEARS, C/O.K.M.IBRAHAM, MAIN ROAD, SUNTICOPPA, COORGE DISTRICT, KARNATAKA. FAO.120/10 3. K.I.SHERIFF, VALLIYOORKAVU ROAD, ARATTUTHARA, MANANTHAVADY, WAYANAD. 4. K.I.ABDURAHIMAN, C/O.K.M.IBRAHIM, MAIN ROAD, SUNTICOPPA, COORGE DISTRICT, KARNATAKA. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- F.A.O.No.120 of 2010 --------------------------------------- Dated this the 20th day of May, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. This appeal is against the rejection of an application to sue as indigent persons. The first plaintiff, a private limited company and other plaintiffs filed a suit in relation to certain transactions relating to agreement for transfer of shares and questioning the continued possession of the company's properties with the defendants. 2. In opposition to the petition to sue as indigent persons, the opposing defendants filed an interlocutory application bringing on record, a list of other means of plaintiffs 2 onwards and sought an order rejecting the original petition on ground of suppression of material facts. 3. On adjudication on the basis of evidence, the court below concluded that some or all among the plaintiffs 2 onwards possessed other means of income and assets, which were not disclosed in the application to sue as indigent persons. It also found that there was no material to hold that the plaintiffs did not have the means to pay the court fee. F.A.O.No.120 of 2010 :: 2 :: 4. Learned counsel for appellants seriously attacked the findings of the court below and strenuously argued that there was no finding at all by the court below that the 1st plaintiff is in possession of means to pay the court fee. He says that the court below had not addressed such issue in spite of materials available before it. We are, however, unable to find fault on the court below in that regard for the simple reason that there was no pleading in the original petition that the company did not possess means to pay the court fee. Our search in that regard in the original petition has led us only to a pleading in the first sentence in the second paragraph thereof. It is stated therein that the first plaintiff company has only the property involved in the suit, the recovery of which is sought for and hence it is unable to pay any court fee. Possession of immovable property has always been held as not the criteria to hold that a person has the means to pay the court fee. In the absence of any plea that the first plaintiff did not have means to pay the court fee, we do not find any jurisdictional error or illegality in the court below not having granted leave to the 1st plaintiff to sue as indigent person. F.A.O.No.120 of 2010 :: 3 :: 5. On the basis of the evidence, the court below has stated categorically the various assets and means, which are available to the other plaintiffs and the reason that the court below could not allow them to sue as indigent persons for instituting the suit, in which the court fee to be paid was Rs.2,00,750/-. For the aforesaid reasons, we find no merit in the appeal and the same is accordingly dismissed. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.