IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 WP(C).No. 3660 of 2009(I) ------------------------------------ OS.21/2007 of SUB COURT, KOTTARAKKARA .................... PETITIONER(S): ----------------------- GOPIKA , W/O. BABU, VIMALALAYAM, VARKALA, THIRUVANANTHAPURAM. BY ADV. SRI.K.KARTHIKEYA PANICKER, SMT.DAYA K. PANICKER. RESPONDENT(S): --------------------------- JAMANISHA BEEVI @ NISHA, D/O. SUHARBAN BEEVI, CHANDRAS, PALLICKAL P.O., KOTTARAKKARA. BY ADV. SRI.ALEXANDER GEORGE, SRI.DILIP MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3660 of 2009(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPICATION IN I.A. NO.1868/2008 DTED 02/12/2008. EXT.P2: COPY OF THE JUDGMENT DATED 03/12/2008 IN O.S. NO.21/2007 OF THE SUB COURT, MAVELIKKARA. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.3660 Of 2009 ---------------------- Dated this the 6th day of October, 2010. J U D G M E N T The writ petition is filed seeking to set aside Ext.P2 order passed by the Sub Court, Kottarakkara and for a direction to restore the suit on file and dispose of Ext.P1 application in accordance with law after hearing the parties on either side. Petitioner is the plaintiff in O.S.No.21 of 2007 on the file of the said court. Suit was filed for realisation of money. At the time of filing of the suit the husband of the petitioner was employed in abroad. The petitioner paid 1/10th of the court fee payable. It is stated in the writ petition that during the pendency of the suit the husband of the petitioner met with an accident and consequently he lost his job and came back to his native place and now he is undergoing treatment. Petitioner's case is that due to the said circumstances, the petitioner is unable to pay the balance court fee. Therefore, she filed I.A.No.1868 of 2008 for permitting her to sue as an indigent person. By Ext.P2 order the court below rejected I.A.No.1868 of 2008. No reasons are stated for W.P.(C).No.3660 Of 2009 ::2:: rejecting I.A.No.1868 of 2008. Consequently, the suit is rejected under Order VII Rule 11 of the CPC finding that the balance court fee is not remitted. 2. Learned Sub Judge rejected I.A.No.1868 of 2008 without going into the merits of the case. Provisions contained in Order XXXIII CPC has to be followed before disposing an application to sue as an indigent person. It is mandatory for the court below to obtain enquiry report from the officer concerned before passing orders on the petition. In this case may be due to the fact that the plaintiff was called absent, I.A.No.1868 of 2008 happened to be dismissed and the suit also rejected under Order VII Rule 11 CPC. In the interest of justice, this Court is of the view that the court should take a decision on merits. 3. In the facts and circumstances of the case, I.A.No.1868 of 008 shall be decided on merits after following the procedure contemplated under Order XXXIII CPC. In the interest of justice, this Court is of the view that the petitioner shall be given an opportunity to substantiate her contentions in the I.A and also in the suit. Therefore Ext.P2 order is set aside. There W.P.(C).No.3660 Of 2009 ::3:: will be a direction to the learned Sub Judge to proceed with I.A.No.1868 of 2008 and the suit on merits in accordance with law. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-