IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 FAO.No. 115 of 2003() --------------------- OP. (PAUPER) 15/1998 OF PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/PETITIONER ---------------------------------------- SIVADASAN, S/O.CHELLAPPAN, KOTTIL VEEDU, PRASAD SAW MILLS, SAKTHIKULANGARA VILLAGE, KOLLAM. BY ADV. SRI.K.K.JOHN RESPONDENTS: RESPONDENTS -------------------------- 1. B.ANILKUMAR, MANALIL VEEDU, MANGAD, KILIKOLLOOR, KOLLAM. 2. SANALKUMAR, OF -DO- -DO- 3. SAJI OF -DO- -DO- 4. PRABHAKUMAR OF DO. AT PRESENT RESIDING AT KOLLASSERIL VEEDU, KALLUMTHAZHAM, KILIKOLLOOR. 5. BIJU, MANALIL VEEDU, MANGAD. 6. SHIBI OF -DO- -DO- 7. SANTHOSHKUMAR, THAMARA CHALIL, KOLENCHERRY, ERNAKULAM. 8. VIJAYAN, CIRCLE INSPECTOR OF POLICE, CHAVARA. 9. VINAYACHANDRAN, SUB INSPECTOR OF POLICE, SAKTHIKULANGARA. 10. DISTRICT COLLECTOR, KOLLAM. F.A.O. 115/2003 2 11. D.K.B - BABU, LORRY DRIVER, RAJESH LORRY KL.7/639. 12. RAJU K.R.E. 1133 LORRY DRIVER, PARKASSERY VAYALIL PUTHEN VEEDU, KILIKOLLOOR P.O. 13. BABU PILLAI, DRIVER OF KL.2/A 2-3085, VAYALIL VEEDU, PULISSERIKULAM PEROOR PO, KARIKODE. (DID) 14. ILLIAS, SANUJA MANZIL, T.K.M.COLLEGE P.O KILIKOLLOOR, KOLLAM. 15. L.VIJAYAKUMAR, VIJAYA BHAVANAM, CHATHINAMKULAM, CHANDANATHOPE PO, OWNER, DRIVER OF KL.2B/748. 16. ANANDAN VADAKKADOM, MANGAD PO. (DIED) 17. RAJAN KONDETHU KADAPPURATHU VEEDU, MUNDAKKAL, KOLLAM. 18. AJAYAN, KADATHANATHU AYYATHU VEEDU, KAVANAD PO. 19. SUJATHA OF DO. 20. SADANANDAN PARASSERIL VAYALIL PUTHEN VEEDU, KILIKOLLOOR P.O. (L.RS OF DECEASED R13 AND R16 ARE NOT IMPLEADED AT THE RISK OF THE APPELLANT/PETITIONER AS PER ORDER DATED 16.6.2009 IN MEMO C.F. 3562.) ADV. SRI.B.MOHANLAL FOR R1-5 & R7 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = F.A.O. 115/2003. = = = = = = = = = = = = = DATED THIS, THE 10TH DAY OF AUGUST, 2009. J U D G M E N T Bhavadasan, J. Aggrieved by the order dated 6.1.2003, in O.P. (Pauper) 15 of 1998 on the file of the Principal Sub Court, Kollam, the petitioner therein has come up in appeal. 2. By the said order, the appellant's application to sue as an indigent person was dismissed by the court below. The suit was one for money. The amount claimed was Rs. 3,26,250/-, with future interest. The plaintiff had to pay a court fee of Rs. 22,772.50. It is the case of the plaintiff that he did not have sufficient means to pay of the court fee and so he prayed that he may be allowed to sue as an indigent person. 3. Respondents 1 to 6 and 16 opposed the petition and according to them, the petitioner has got enough assets from which he could raise funds to pay the court fee. 4. For the purpose of the petition, petitioner was examined as PW.1. The court below found that the petition was defective in as much as it did not accompany any schedule as enjoined by Order 33 Rule 2 of the Code of F.A.O. 115/2003 2 Civil Procedure, the consequence of which is as mentioned under Order 33 Rule 5 which states inter alia that if the application is not in the form prescribed under Order 33, Rule 2, it has to be summarily rejected. Since the application contained no schedule as is absolutely necessary, the same was rejected. The said order is assailed in this appeal. 5. According to the learned counsel appearing for the appellant, the court below was not justified in dismissing the application in as much as an application for amendment had been filed by the petitioner seeking to incorporate the schedule, which was not considered and the court below went on to dismiss the application without passing an order on the said application. 6. The petitioner/appellant was examined as PW.1. It is true that the application did not contain a schedule as enjoined under Order 33 Rule 2, the consequence being rejection of the petition under Order 33 Rule 5. But one can not omit to note that the petitioner/appellant had filed an amendment petition as early as on 24.11.2002 and the order impugned was passed only on 6.1.2003. There is nothing to indicate that the amendment application was considered and orders passed thereon. Whether amendment could be allowed or not is a different matter. Petitioner is certainly entitled to have the application considered on merits. It is also stated that he has no sufficient means to pay the court fee. F.A.O. 115/2003 3 7. In the light of the above facts, we think that the appellant/ petitioner should be given an opportunity to incorporate the schedule and also an opportunity to adduce further evidence in the matter. In the result, the appeal is allowed; the impugned order is set aside and the matter is remitted to the court below to pass fresh orders in the light of what has been stated above. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. KNC/-