IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTYFOURTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.3727 of 2007 Between: Khagga Perumallu .. Petitioner AND Dumpala Parvathamma, being mild mentally retarded, represented by next friend Dumpala Subba Rao .. Respondent ORDER: The dismissal of the petition filed by the defendant under Order XXXIII Rule 9 and Section 151 of the Code of Civil Procedure in I.A.No.1392 of 2002 in O.S.No.5 of 2002 dated 13-07- 2007 on the file of the Senior Civil Judge, Bapatla, led the unsuccessful defendant to file the present revision. The respondent herein filed the suit as an indigent person against the revision petitioner herein and the revision petitioner claimed that after the suit, the respondent sold away a portion of the suit property for a consideration of Rs.47,000/-, due to which she has to be dispaupered. The respondent contended that she was taken away by the wife of the defendant in March, fraudulently a document was obtained without payment of any consideration and the document was not signed by the next friend of the plaintiff as an attestor and neither the plaintiff nor the next friend received any consideration. During the course of enquiry, PWs.1 and 2 were examined and Ex.A.1 and A.2 were marked. The trial Court rendered the impugned order observing that the suit was filed by the plaintiff as a mentally retarded person represented by her next friend and she could not have alienated the property on her own by receiving any consideration. The trial Court also opined that either in the suit or even after its disposal, the court always can collect the court fee from the plaintiff, if it comes to a specific conclusion on the question against the plaintiff. Consequently, the petition was dismissed. The defendant contends in this revision that the trial Court ought to have appreciated that the next friend of the plaintiff was an attestor to the sale deed in question and even in the counter filed by Dumpala Subbarao, he signed representing the plaintiff, which should have been verified. The defendant also contended that when the plaintiff represented by the next friend had sufficient means after the sale, she ought to have been directed to pay the court fee. Heard Sri C. Raghu, learned counsel for the revision petitioner and Sri Ganduri Nageswara Rao, learned counsel for the respondent-plaintiff. The point for consideration is whether the permission granted to the plaintiff to sue as an indigent is liable for cancellation at this stage? Order XXXIII Rule 1 of the Code of Civil Procedure specifically excludes the subject matter of the suit for the purpose of computation of sufficient means of a person attempting to sue as an indigent person. But the subject matter of the suit may fall for consideration while considering the withdrawal of the permission to sue as an indigent person in the light of Order XXXIII Rule 9 (c) of the Code of Civil Procedure whereunder the person suing as an indigent person entering into an agreement with reference to the subject matter of the suit under which any other person has obtained an interest in such subject matter will make such plaintiff liable for withdrawal of the permission earlier granted to sue as an indigent person. In the present case, it is true that the allegation of the defendant is that the plaintiff had entered into a registered sale deed in favour of third party in respect of part of the suit property bringing the situation within the scope of the said Order XXXIII Rule 9 CPC. But the peculiar facts and circumstances of this case show that the plaintiff is said to be a mentally retarded person unable to represent herself in the suit and is, therefore, suing through the aid of her brother Sri Dumpala Subba Rao as her next friend. The said Dumpala Subba Rao himself is said to be an attestor and identifying witness for the transaction in question under which the plaintiff was alleged to have received Rs.47,000/- as consideration for sale of a portion of the suit property. Though PW.2 disputed the mental state of the plaintiff, the defendant himself as PW.1 stated in his cross-examination that the plaintiff was unmarried as she is mentally retarded. Therefore, the question would arise as to whether such a mentally retarded person could have been competent to execute the registered sale deed in respect of a part of the suit property on her own when she is represented by her next friend in the suit and whether even the next friend could have been able to validate such a transaction by being an attestor and identifying witness to such a document without following due process of law. It will be also a controversial fact to be gone into as to whether any consideration was received by the plaintiff under the said transaction and to what extent. These controversial questions of fact are better left open to be gone into and decided in the suit instead of in any interlocutory enquiry and therefore, without interfering with the order of the trial Court leaving open the question of payment of consideration, which may be decided at the end of the suit, either party should be given liberty to agitate their respective case during trial of the suit to be ultimately determined by the trial Court on merits in its judgment in the suit. Accordingly, the impugned order is not being interfered with and the Civil Revision Petition is dismissed without costs with a liberty to both the parties to agitate relating to the questions in controversy about this particular transaction in the suit itself, which shall be determined by the trial Court on merits in its judgment in the suit. Such determination shall be uninfluenced by any observations made in this revision or the impugned order. _____________________ G. BHAVANI PRASAD, J Date: 24-06-2010 Ksn