IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 OP(C).No. 1280 of 2011(O) ------------------------ I.A 1187/2009 IN OS.80/2009 OF SUB COURT, KOCHI ................... PETITIONERS : ----------------------- 1. SEETHI KUMAR, S/O.DANDAPANI, KANIAMPURAM NIKARTHIL HOUSE, NARAKKAL, NARAKKAL VILLAGE, KOCHI TALUK. 2. LOLA SEETHI KUMAR, W/O.SEETHI KUMAR, KANIAMPURAM NIKARTHIL HOUSE, NARAKKAL, NARAKKAL VILLAGE, KOCHI TALUK. BY ADV. SRI.M.P.RAMNATH RESPONDENT : ----------------------- M.G.DEVAKI, D/O.LATE GOVINDAN, MAVUMMOOTTIL HOUSE, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK. BY ADV. SRI.ABRAHAM P.GEORGE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 1280 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PHOTOCOPY OF THE ORDER DATED 22.01.2011 IN IA 1187/2009 IN OS 80/2009 OF THE SAID COURT. EXT.P2 : PHOTOCOPY OF THE APPLICATION FILED BY THE PLAINTIFF AS IA 1187/2009 IN OS 80/2009 SEEKING LEAVE TO SUIT AS INDIGENOUS PERSON. EXT.P3 : PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT TO IA 1187/2009 IN OS 80/2009 BEFORE THE SUB COURT, KOZHI. EXT.P4 : PHOTOCOPY OF THE ORAL EVIDENCE OF THE PLAINTIFF IN IA 1187/2009 INCLUDING BOTH THE PROOF AFFIDAVIT AND CROSS EXAMINATION AS RECORDED BY THE ADVOCATE COMMISSIONER. EXT.P5 : PHOTOCOPY OF THE JUDGMENT DATED IN OS 377/2005 MARKED AS EXT.B1 IN EXT.P1 ORDER. EXT.P6 : PHOTOCOPY OF THE BANK ACCOUNT STATEMENT PRODUCED FROM STATE BANK OF TRAVANCORE, NARAKKAL OF THE PLAINTIFFS BANK ACCOUNT AS DIRECTED BY COURT AND MARKED AS EXT.B2 IN EXT.P1 ORDER. EXT.P7 : PHOTOCOPY OF THE ADVANCING APPLICATION FILED BY THE PETITIONER'S/DEFENDANTS DATED 10.11.2010. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1280 of 2011 ==================================== Dated this the 14th day of December, 2011 J U D G M E N T Exhibit P1, order whereby learned Sub Judge, Kochi allowed the respondent to sue as an indigent person is under challenge in this Original Petition. Respondent sued petitioners to set aside two assignment deeds she had executed in their favour on the ground of fraud and other vitiating circumstances pleaded in the plaint. Court fee payable with respect to the said documents was Rs.23,450/- of which respondent paid 1/10th and the case was posted for payment of balance court fee on 19.08.2009. Respondent filed Ext.P2, application – I.A. No.1187 of 2009 to permit her sue as indigent person scheduling her assets in the application. Petitioners preferred Ext.P3, objection contending that respondent has means to pay the balance court fee. Learned Sub Judge enquired into the matter and by Ex.P1, order allowed respondent to sue as an indigent person. Exhibit P1, order is under challenge. 2. It is contended by the learned counsel that evidence of O.P(C) No.1280 of 2011 -: 2 :- respondent as P.W.1 would show that she was having sufficient means to pay balance court fee and at any rate those assets are not mentioned in the schedule attached to I.A. No.1187 of 2009. According to the learned counsel for the said reason alone, application was liable to be rejected and placed reliance on the decision in Mathew v. State of Kerala (1996 [2] KLT 363). It is argued that though respondent has an explanation that the amount in her bank account represented her pension, once the department released pension and it reached the hands of pensioner it lose its character as pension. Reliance is placed on the decision in Jarayaja Menon v. Rajakrishna (1997 [1] KLT 813). 3. Learned counsel for respondent contended that the amount in the account of respondent as revealed by Ext.P6, statement is her pension which is exempted from attachment and hence cannot be taken into account while considering means of respondent for payment of balance court fee. It is also contended that there is no evidence to show that except the assets scheduled in I.A. No.1187 of 2009 respondent has any other assets sufficient to pay the court fee. 3. So far as the character of amount of pension once it O.P(C) No.1280 of 2011 -: 3 :- reached the hands of pensioner is concerned, the Supreme Court in Radhey Shyam Gupta v. Punjab National Bank ([2009] 1 SCC 376) held that retiral benefits will not lose its character even after the same is received by the retiree. 4. But that is not the question for consideration in this proceeding. Under Rule 2 of Order XXXIII of the Code of Civil Procedure (for short “the Code”) an application for permission to sue as indigent person shall contain a schedule of any movable or immovable property belonging to the applicant with the estimated value thereof. Rule 5(a) of the said Order says that the court shall reject an application for permission to sue as an indigent person where it is not framed and presented in the manner prescribed by Rules 2 and 3. In Mathew v. State of Kerala (supra) the Division Bench held that when an applicant does not disclose an asset held by him in his application whatever be the reason, the application is liable to be rejected. It is a different matter that respondent could point out that those assets could not be taken into account as means while considering whether she has sufficient means to pay balance court fee. Evidence of P.W.1 shows that she was having some gold ornaments and fixed deposits in various banks. Concededly the O.P(C) No.1280 of 2011 -: 4 :- amount in her bank account (whether being pension amount is to be treated as means or not), the ornaments she claims to have had and fixed deposits are not referred to in the schedule of the application. Respondent was required to mention all her assets in the schedule of I.A. No.1187 of 2009 and give her own explanation as to why the same could not be treated as means. Viewed in that line I find that the application is defective as it does not comply with the requirements of Rule 2 of Order XXXIII. 5. But I am not inclined to think that for the said reason I.A. No.1187 of 2009 has to be rejected. It is not as if law does not permit the respondent to seek necessary amendment to the schedule of I.A. No.1187 of 2009 and make it in tune with the requirement of Rule 2 of Order XXXIII of the Code. I am inclined to give the respondent an opportunity for that. Resultantly, Original Petition is allowed and Ext.P1, order is set aside. I.A. No.1187 of 2009 in O.S. No.80 of 2009 of the court of learned Sub Judge, Kochi is remitted to the said court to give respondent opportunity to make the application in tune with the requirement of Rule 2 of Order XXXIII of the Code by stating all the assets she has. On necessary amendment being made respondent will get opportunity to adduce further evidence in the O.P(C) No.1280 of 2011 -: 5 :- matter. Learned Sub Judge is directed to expedite disposal of I.A. No.1187 of 2009 bearing in mind that the suit is of the year 2009 and that respondent is aged 88 years. THOMAS P. JOSEPH, JUDGE. vsv