IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CMA.No. 211 of 2001() --------------------- AGAINST THE ORDER IN IA. 351 /1999 IN OS.261/1991 of SUB COURT, MANJERI .................... PETITIONERS/PETITIONERS --------------------------------------- 1. K. MALATHI AMMA, W/O. P. NARAYANAN NAIR, KOLLATH HOUSE, PANNIYANKARA AMSOM AND DESOM, P.O. THIRUVANNUR, KOZHIKODE DISTRICT. 2. K. VIMALA, D/O. P. NARAYANAN NAIR, KOLLATH HOUSE, PANNIYANKARA AMSOM AND DESOM, P.O. THIRUVANNUR, KOZHIKODE DISTRICT. 3. K. RAMANI, D/O. P. NARAYANAN NAIR, KOLLATH HOUSE, PANNIYANKARA AMSOM AND DESOM, P.O. THIRUVANNUR, KOZHIKODE DISTRICT. 4. K. NIRMALA, D/O. P. NARAYANAN NAIR, KOLLATH HOUSE, PANNIYANKARA AMSOM AND DESOM, P.O. THIRUVANNUR, KOZHIKODE DISTRICT. BY ADV. SMT.PREETHY KARUNAKARAN SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SMT.BIJIMOL JOSE RESPONDENT(S)/REPONDENTS: -------------------------------------------- 1. PULIKKOT RADHAMMA, W/O. LATE RAMACHANDRA KURUP, VARIYAMTHODI HOUSE, MANJERI AMSOM, P.O. MANJERI – 676 121, MALAPPURAM DISTRICT. 2. PULIKKOT JAYARAJAN NAIR, S/O. APPUKUTTA PANICKER, PANNIYANKARA AMDOM DESOM, P.O. THIRUVANNUR, KOZHIKODE DISTRICT. 3. PULIKKOT VILASINI AMMA, W/O. LATE SIVASANKARAN NAIR, VARIYAMTHODI HOUSE, MANJERI AMSOM, INDUSTRIAL ESTATE ROAD, P.O. MANJERI – 676 121, MALAPPURAM DISTRICT. 4. PULIKKOT RADHAMMA, W/O. LATE MADHAVAN NAIR, VARIYAMTHODI HOUSE, MANJERI AMSOM, P.O. MANJERI – 676 121, MALAPPURAM DISTRICT. 5. PULIKKOT REENA, D/O. RADHAMMA, SREEKRISHNAPURM HOUSE, NATT STREET, PARAVANTHAR, P.O., VADAKARA, KOZHIKODE DISTRICT. (NAME WRONGLY SHOWN AS REENA IN THE ORDER) 6. PULIKKOT ARUN, S/O. PULIKOT RADHAMMA, SREEKRISHNAPURM HOUSE, NATT STREET, PARAVANTHAR, P.O., VADAKARA, KOZHIKODE DISTRICT. 7. PULIKOT VIJAYALAKSHMI, D/O. LAKSHMIKUTTY AMMA, VARIYAMTHODI HOUSE, P.O. MANJERI, MALAPPURAM DISTRICT. 8. PULIKOT PRABHAVATHI, D/O. LAKSHMIKUTTY AMMA, VARIYAMTHODI HOUSE, P.O. MANJERI, MALAPPURAM DISTRICT. 9. PULIKOT VIJAYAN, S/O. LAKSHMIKUTTY AMMA, VARIYAMTHODI HOUSE, P.O. MANJERI, MALAPPURAM DISTRICT. 10. PULIKOT MOHANAN, S/O. LAKSHMIKUTTY AMMA, VARIYAMTHODI HOUSE, P.O. MANJERI, MALAPPURAM DISTRICT. 11. PULIKOT SUJATHA,, D/O. LAKSHMIKUTTY AMMA, VARIYAMTHODI HOUSE, P.O. MANJERI, MALAPPURAM DISTRICT. 12. PURAYATH DEVI, W/O. P. VENUGOPALAN NAIR, PALIYAPARAMBA, MANJERI AMSOM, P.O. MANJERI, MALAPPURAM DISTRICT. 13. PURAYATH LATHA, D/O. P. VENUGOPALAN NAIR, PALIYAPARAMBA, MANJERI AMSOM, P.O. MANJERI, MALAPPURAM DISTRICT. 14. K. BHARGAVI AMMA, W/O. P. RAVINDRANATHAN NAIR, MANJERI AMOSM, VAYAPPAPEDI, P.O. MANERI, MALAPPURAM DISTRICT. 15. K. USHA, D/O. P. RAVINDRANATHAN NAIR, MANJERI AMOSM, VAYAPPAPEDI, P.O. MANERI, MALAPPURAM DISTRICT. 16. K. MOHANDAS, S/O. P. RAVINDRANATHAN NAIR, MANJERI AMOSM, VAYAPPAPEDI, P.O. MANERI, MALAPPURAM DISTRICT. 17. K. SABARINATH, S/O. P. RAVINDRANATHAN NAIR, MANJERI AMOSM, VAYAPPAPEDI, P.O. MANERI, MALAPPURAM DISTRICT. 18. K. SUJATHA, D/O. P. RAVINDRANATHAN NAIR, MANJERI AMOSM, VAYAPPAPEDI, P.O. MANERI, MALAPPURAM DISTRICT. 19. K. RAVICHANDRAN, S/O. P. RAVINDRANATHAN NAIR, MANJERI AMOSM, VAYAPPAPEDI, P.O. MANERI, MALAPPURAM DISTRICT. ADV. SRI.A.P.CHANDRASEKHARAN, SR. ADV. FOR R7TO 11 SRI.PUSHPARAJAN KODOTH FOR R7 TO R11 SRI.K.JAYESH MOHANKUMAR FOR R7 TO R11 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. 3187 OF 2001 IN C.M.A. 211 OF 2001. DISMISSED. 27.5.2009. SD/- P.R. RAMAN, JUDGE. SD/- P. BHAVADASAN, JUDGE. P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.A. No. 211 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2009. JUDGMENT Bhavadasan, J, A suit for partition by way of amendment was converted into a suit for recovery of possession on the strength of title. By amendment they incorporated a new relief, and it became necessary for the plaintiffs to pay court fee of Rs.3,10,500/-. At that point of time, they filed I.A. No.351 of 1999 seeking permission to proceed with the suit as in forma pauperis. 2. Along with the application plaintiffs did not file a schedule as contemplated under Order XXXIII Rule 2 of Code of Civil Procedure. When that was pointed out, they sought time to file a schedule. Even though time was granted they did not file the same. The defendants served interrogatories on the plaintiffs. In interrogatories, it was shown that the plaintiffs possessed properties. Finding that the schedule as contemplated under Order 33 Rule 2 CPC is mandatory in nature, rejected the application under Order 33 Rule 5 CPC. The said order is assailed in this appeal. C.M.A.211/2001. 2 3. The main contention of the learned counsel for the appellants before this court is that by way of reply to the interrogatories served by the defendants, the plaintiffs had revealed the assets possessed by them and that would be sufficient in law. 4. We are unable to agree. The mandatory nature of Order 33 Rule 2 cannot be overlooked. It stipulates that a petition under Order 33 Rule 1 has to be accompanied by a schedule as contemplated under Order 33 Rule 2. Order 33 Rule 5 shows that when an application is not accompanied by a schedule, the court has to reject the application. That is what has been precisely done in this case. 5. However, learned counsel appearing for the respondents pointed out that in fact the court below had referred to the fact that the petitioners before the court below were possessed of assets, which they had not disclosed. It is also pointed out that evidence had been adduced. In other words, the contention appears to be that the disposal is one under Order 33 Rule 7. If that be so, learned counsel says that no interference is called for. C.M.A.211/2001. 3 6. It is true that the court below referred to these aspects in its order. But there was no finding that the plaintiffs by virtue of the possession of the assets are capable of raising money sufficient to pay the court fee. In fact a reading of the order will show that discussion proceeded on that basis, but the court below reached the conclusion that for want of schedule as already mentioned, the petition is liable to be rejected. That is all what has been done. Learned counsel for the appellants was unable to show any factual or legal infirmity in the order of the court below. The appeal is without merit and it is dismissed with liberty to the appellants to pursue such steps as are available to them under law. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb. C.M.A.211/2001. 4 P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.A. No. 211 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 27.05.2009.