IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 FAO.No. 318 of 2008() -------------------- IOP.6/2007 OF SUB COURT,ERNAKULAM ................. APPELLANT / PETITIONER / PLAINTIFF : ------------------------------------------------------ GOPALAKRISHNAN, AGED 48 YEARS, S/O.KUTTAPPAN, VALUMMEL MUKKIL HOUSE AYYAKUNNAM DESOM, EDAKKATTUVAYAL VILLAGE, KANAYANNOR TALUK. BY ADVS. SRI.K.N.CHANDRABABU SRI.T.G.KALADHARAN RESPONDENT / RESPONDENTS / DEFENDANTS : -------------------------------------------------------------------- 1. O.P.GEORGE, AGED 42 YEARS, S/O. PAILY, OLIKKARA HOUSE, KOOVAIKKAPPILLY DESOM, KAIPATTOOR VILLAGE, KANAYANNUR TALUK. 2. JIMMY AGED 31 YEARS, S/O. THOMAS, PAYYANAMYALIL HOUSE, PARPPIKADU KARA, EDAKKATTUVAYAL VILLAGE, KANAYANNUR TALUK. 3. SEBINKUMAR, AGED 21 YEARS, S/O.GANGADHARAN, PULIKKAL HOUSE, WEST OF NAYARAMBALAM DEVI TAMPLE, NAYARAMBALAM VILLAGE, PARAVUR TALUK. 4. SABU @ JOLLY, AGED ABOUT 23 YEARS, S/O.JOY, CHEMMARIKKAL HOUSE, MARIYAPPADI DESOM, KARUMALOOR VILLAGE, ALUVA TALUK. 5. SALI, AGED 20 YEARS,S/O.ABDULLA MOULAVI, VADUTHALA KARA JETTY BHAGOM, ARROOKKUTTY VILLAGE, CHERTHALA TALUK. R1 & R2 BY ADV. SRI.PAUL K.VARGHESE THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.318 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of September, 2010. Judgment Thottathil B.Radhakrishnan, J. This appeal is by the petitioner in a petition filed seeking leave to sue as an indigent. The Court below found that during his examination he stated in court that he possesses certain immovable properties and holds certain shares in immovable properties. While it is true that he made such statement, we are told that the said statements were made by him during the course of chief examination. With that, the learned counsel for the appellant pointed out that none of those properties is capable enough to provide income sufficient to pay the court fee. He accordingly stated that the court below refused the FAO318/08 -: 2 :- opportunity to sue as an indigent merely because the availability of such shares in immovable properties was not disclosed in the petition. Taking note of the relevant provisions, we find that though an application to sue as an indigent is liable to be rejected on the ground that his assets are not disclosed in the petition, we are of the view that the court will be within jurisdiction to grant leave to amend the application for leave to sue as an indigent, having particular regard to Order 33 Rule 5(a) of the CPC. In the result, we vacate the impugned order without going further into the merits and direct the parties to appear before the court below. The plaintiff appellant will be at liberty to apply to the court below for leave to amend I.O.P.6/2007 provided such application is presented within a period of forty five days from today and in that event, such application shall be disposed of in accordance with law, after FAO318/08 -: 3 :- hearing necessary parties. The writ petition is ordered as above. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/2009