IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 WP(C).No. 7688 of 2008(M) ------------------------- OS.129/2006 of PRINCIPAL SUB COURT,ALAPPUZHA .................... PETITIONER: ------------ ULAHANNAN JOHN, AGED 58, S/O.ULAHANNAN, MADASSERIL, KALAVOOR P.O., KATOOR MURI, KALAVOOR VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.MANJU ANTONEY SRI.KURIAKOSE MATHEW RESPONDENTS: STATE/UNION ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA. 2. UNION OF INDIA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, NEW DELHI. BY GOVT.PLEADER SMT.R.BINDU ADV.SHRI P.PARAMESWARAN NAIR, ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/03/2008, ALONG WITH WPC NO. 7691 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------------------- W.P.(C).No.7691 of 2008 & W.P.(C) No. 7688 of 2008 ------------------------------------------- Dated this the 10th day of March, 2008 JUDGMENT These writ petitions are preferred against the order of the Principal Subordinate Judge, Alappuzha and Additional Subordinate Judge, Alappuzha in O.S.No.129/2006 and O.S.No.88/2006 whereby the court had withdrawn the permission granted to the writ petitioner to sue as an indigent person. 2. The suits are for realisation of damages to a tune of Rs.5 lakhs in O.S.No.88/2006 and Rs.10 lakhs in O.S.No. 129/2006. The court below originally granted permission to institute the suit as an indigent person and on a subsequent application filed by the Collector had withdrawn the permission and it is against those orders the present writ petitions are filed. 3. The learned counsel for the petitioner contends before me about the constitutionality under Order 33 as well as on facts and the law and the learned Government Pleader would contend WPC7691/2008 & 7688/2008 2 that when it is found out or admitted that the indigent person is having 53 cents of land, then naturally the court has to come to the conclusion that there are realisable assets which is capable of making him raise the money to pay the the court fee as contemplated under law. So far as the constitutionality, I think it need not be considered for the reason that the Civil Procedure Code itself has taken into consideration the necessity of permitting the person to sue as an indigent person for the reason that justice shall not be denied to person merely on account of the fact that one does not have any means. So, I do not find any merit in the contention regarding the said argument. 4. Now coming to the facts this court had occasion to consider this point first in the decision reported in Janakykutty vs. Varghese (1969 KLT 953) wherein this court held that : “The real question is not whether the assets of the minor are considerable but whether the minor can raise resources therewith. What is contemplated is not possession of property but sufficient means, that is capacity to raise money to pay court fees and it is incumbent on the Court to come to a finding on that WPC7691/2008 & 7688/2008 3 point. The capacity to raise money is the crux of the matter and this turns firstly on convertibility of the property into cash readily and secondly on the legally competent agency to dispose of property for this purpose.” Later a Division Bench of this Court in the decision reported in Xavier vs. Kuriakose (1987(1) KLT 176) had defined an indigent person. This court held that : “an indigent person need not be one bereft of all material possessions of value. The Code confers the benefit on persons without 'sufficient means'. It refers not, to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain if he is capable of raising the court fee in normal circumstances. The Code uses the expression 'sufficient means', which is, means sufficient to pay court fee, after meeting the basic requirements of life. Total destitution is no pre-requisite to seek justice. If WPC7691/2008 & 7688/2008 4 he has not sufficient means to pay court fee, justice shall not be denied to him”. 5. So the principle laid down in these two decisions are to the effect that if a person is in possession of the property and it is capable of being utilised for the purpose of raising funds, then one can draw the presumption that it can be used for raising funds. Now as far as the present case is concerned, the total extent involved is 53 cents of land and it is submitted that it is the said land that can be used for the purpose of raising funds in the case. It is submitted that out of the 53 cents of land, 44 cents had already been mortgaged with CARD Bank. So, if a property is mortgaged with an institution, it runs with the land and it may not be possible to dispose of the property without discharging the liability which is first charge on the property. Therefore, one cannot say that these 44 cents of land are capable of being used to raise the funds, so as to pay the court fee without discharging the mortgage liability. Then what remains is the balance 9 cents and their residential house. A person need not be thrown to the streets and that it is not the contemplation WPC7691/2008 & 7688/2008 5 of the legislature under Order 33 of Civil Procedure Code. Even according to the Collector, the total fund that can be raised by selling the entire property comes to about Rs.2,60,000/- only. Therefore, the circumstances available in the case do not show that these properties can be utilised for the purpose of raising the funds in order to pay the court fee. As observed in these decisions, justice shall not be denied for such persons and one shall not be thrown to the streets just because he has instituted a suit without means. Therefore, I feel that the decisions rendered by the court below is not proper. The learned Government Pleader has brought to my notice a decision of this court reported in Johnson vs. Ouseph (2007(1) KLT 664) which deals with a situation that it is only the subject matter of the suit filed by indigent person, that is to be excluded and not other properties. There cannot be any quarrel about the proposition of the law laid down by the court. What is to be looked into by the court is whether such property is capable of being used for the purpose of raising the funds to pay the court fees. As discussed by me earlier, it is not proved as sufficient means to raise the funds. Therefore, I set aside the orders passed in both the cases WPC7691/2008 & 7688/2008 6 and reject the applications filed by the Government under Order 33 Rule 9 and permit the writ petitioner to proceed with the suit as an indigent person. The writ petitions are disposed of accordingly. M.N.KRISHNAN, JUDGE csl