IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 FAO.No. 9 of 2008() ------------------- AGAINST THE ORDER DATED 22/06/2007 IN IA.NO.5958/2005 IN OS.320/2005 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER IN I.A./DEFENDANT ---------------------------------------------------------- SRI.MADHUSUDHANAN.I.M., PROPRIETOR OF AGI & ASSOCIATES, ILLATH, CHEPPANAM, PANANGAD P.O., KOCHI-682 506, REPRESENTED BY POWER OF ATTORNEY HOLDER SMT.RADHAMANIAMMA. BY ADV. SRI.V.B.JINNAH RESPONDENT(S): PLAINTIFF ------------------------ M/S.ADVANCE PAINTS PVT. LTD., "ADVANCE HOUSE" PLOT A, MAKWANA ROAD, ARK INDL. COMPOUND, MAROL NAKA, ANDHERI EAST, MUMBAI-400 059. ADV. SRI.K.N.SIVASANKARAN FOR R1 SRI.SUNIL SHANKER FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON 20.7.2009 DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.9 OF 2008 -------------------------------------------------------- Dated 20th July 2009 Judgment BHAVADASAN, J. The petitioner, who filed an interlocutory application, seeking permission to prefer set off as indigent person, is the appellant. His application was dismissed. The suit was instituted for recovery of a sum of Rs.7,92,151/-. That was the price of goods said to have been set off by the defendant. The various other facts regarding the suit are not stated, as they are not very relevant here. 2. In the suit, the appellant claims set off and adjustment. According to him, he was unable to pay the court fee as he had no funds for the same. He therefore, prayed that he may be permitted to prefer the set off and adjustment as informa pauperis. 3. The petition was resisted by the respondent. It is pointed out by him that there is no bona fide in the claim at all and that the petitioner had assets with him sufficient to pay the court fee FAO NO.9/08 2 required for the set off. 4. It is seen that the Village Officer has filed a report. Considering the materials before it, the court below found that the claim of the appellant is untrue and dismissed the application. The said order is assailed. 5. The learned counsel for the appellant pointed out that the court below was not justified in rejecting his claim to prefer the set off without paying the court fee. According to him, he has no means to pay the court fee. 6. The court below was greatly impressed by the fact that the appellant had a mobile phone and that he was staying abroad. His family was staying in a flat at Thripunithura. According to the lower court, without any income, the appellant could not have gone abroad. Based on these facts, the petition was dismissed. It is interesting to note that the report of the Village Officer only says that the petitioner is abroad. The report has not disclosed any assets as such, possessed by the petitioner, which is capable of generating funds for the purpose of payment of the court fee. True that he may be staying abroad, FAO NO.9/08 3 but that does not lead to an automatic conclusion that he earns income. He would say that he has gone abroad to join his brother and is trying for a job. Whatever that be, there is nothing to indicate that he has any means of income. 7. One has to say that the finding of the court below is based on conjecture and surmises. There is absolutely no material to show that the petitioner is possessed of funds which would enable him to pay the court fee. In the result, this appeal is allowed. The impugned order is set aside and permission is granted to the appellant to prosecute his set off and adjustment as informa pauperis. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO NO.9/08 4 FAO NO.9/08 5