IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 OP(C).No. 1849 of 2011(O) ------------------------- OS.173/2002 of MUNSIFF COURT, KOCHI .................... PETITIONER: ------------------ 1. SAKUNTHALA AGARWAL, AGED 62, W/O.R.B.AGARWAL, PROPRIETRIX, JAGADAMABA TRADING COMPANY, BAZAR ROAD, MATTANCHERRY, KOCHI-682 002. 2. SUSHIL AGARWAL, AGED 37, S/O.R.B.AGARWAL, PROPRIETOR, SIDHI VINAYAKA TRADERS, BAZAR ROAD, MATTANCHERRY, KOCHI-682 002. BY ADV. SRI.B.RAMACHANDRAN SMT.K.B.REKHA RESPONDENT(S): --------------- 1. KERALA STATE WAREHOUSING CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, ERNAKULAM, KOCHI-682 016. 2. THE ASSISTANT MANAGER, STATE WAREHOUSE, FORT-KOCHI, KOCHI-682 001. ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. FOR R1-2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1849/2011 APPENDIX PETITIONERS' EXHIBITS : EXT.P1: COPY OF COMMISSION REPORT DATED 11.7.2002. EXT.P2: COPY OF WRITTEN STATEMENT DATED 5.10.2002. EXT.P3: COPY OF JUDGMENT DATED 23.5.2007 IN WPC NO.24530/2004. EXT.P4: COPY OF ADDITIONAL WRITTEN STATEMENT DATED 15.10.2007. EXT.P5: COPY OF AFFIDAVIT WITH PETITION DATED 30.10.2007 EXT.P6: COPY OF JUDGMENT DATED 30.10.2007 IN O.S.NO.173/2002 OF MUNIFF'S COURT, KOCHI. EXT.P7: COPY OF AMENDED PLAINT DATED 19.3.2002 ALONG WITH ENDORSEMENT THEREON. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1849 of 2011 --------------------------------------- Dated this the 16th day of June, 2011 JUDGMENT The petitioners filed O.S.No.173 of 2002 on the file of the court of the Munsiff of Kochi for rendition of accounts. The original valuation of the suit was below ` One lakh and therefore, the suit was filed before the Munsiff's Court. Later, after the Commissioner inspected the go-down, an application was filed to amend the plaint. After the amendment, the valuation in the plaint exceeded the pecuniary jurisdiction of the Munsiff's Court. The valuation shown in the amended plaint is ` 64,51,838/-. The court fee payable thereon under Section 22 of the Court Fees Act is ` 3,47,670/-. 2. The petitioners filed application under Order 33 Rule 1 of the Code of Civil Procedure before the Munsiff's O.P.(C) No.1849/2011 2 Court to allow them to prosecute the suit as indigent persons. It is stated by the learned counsel for the petitioners that no fresh petition under Order 33 Rule 1 was filed before the Sub Court on presentation of the plaint before the Sub Court. 3. On presentation of the plaint before the Sub Court, three defects were noted. Defect No.3 was the following : "Court fee calculated not correct." The plaint was re-presented after curing the defects. Defects 1 and 2 were cured. As regards defect No.3, it was answered by the plaintiffs stating that the court fee was calculated as per the Court Fees Act as it stood before the amendment, the suit having been filed before the amendment of the Court Fees Act. It is noted on 4.1.2008 by the office thus : “The suit presented before this Court cannot be numbered at this stage as indigent petition is pending.” 4. There is also another endorsement by the office on O.P.(C) No.1849/2011 3 4.1.2008 which reads as follows : “Returned for resubmission along with the balance 1/10th court fee to be paid as per the Court Fees Act as stood before amendment, within three days." 5. The relief prayed for in the Original Petition is to direct the Sub Court, Kochi to receive back Exhibit P7 plaint, consider Exhibit P5 application filed under Order 33 Rule 1 C.P.C. and to render a finding regarding the indigency of the petitioners. 6. The application for allowing the plaintiffs to file the suit as indigent persons was not filed before the Sub Court. If the petitioners wanted to prosecute the suit as indigent persons, they should file the application under Rule 1 of Order 33 C.P.C. before the proper court, the proper court being the Sub Court. The application filed by them before the Munsiff's Court after the amendment of the plaint cannot be considered O.P.(C) No.1849/2011 4 as a proper application. However, it is endorsed by the court that indigent petition is pending. How such a conclusion was arrived at is not clear. The learned counsel for the petitioner submitted that no application was filed before the Sub Court under Order 33 Rule 1 C.P.C. The Sub Court having accepted the contention of the petitioners that court fee should be paid as per the Court Fees Act before the amendment and if the application under Order 33 Rule 1 is pending, there was no necessity for return of the plaint. The endorsements are not clear. The facts stated by the petitioners in the Writ Petition are also not clear. It is also not clear whether the application for filing the suit as indigent persons is pending either before the Munsiff's Court or before the Sub Court. In this nebulous state of affairs, I think the Original Petition can be disposed of with the following directions: (i) The petitioners shall re-present the plaint before the Sub Court, Kochi within a period of two weeks O.P.(C) No.1849/2011 5 from today. (ii) The petitioners shall file a proper application under Order 33 Rule 1 C.P.C. before the Sub Court, if they want to prosecute the suit as indigent persons. (iii) If an application under Order 33 Rule 1 is properly presented, the Sub Court shall deal with the same in accordance with law. (iv) If such an application is filed, it is not necessary to pay the 1/10th court fee unless the court finds that the application under Order 33 Rule 1 is not maintainable or allowable. K.T.SANKARAN JUDGE csl