IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 FAO.No. 241 of 2008() --------------------- IA.2269/2008 IN OS NO.1152 OF 2004 of PRL.SUB COURT,THRISSUR .................... APPELLANT/PLAINTIFF/PETITIONER IN I.A. ---------------------------------------------------------- K.S.NATHAN, S/O KALLEPARAMBIL LATE KUTTAN NAIR, VELIYANNUR DESOM, THRISUR VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.P.GOPINATH RESPONDENT(S): --------------- 1. K.KISOREKUMAR, S/O KARNAKARA VEETTIL LATE M.R.K.MENON, VELIYANNUR DESOM, THRISSUR VILLAGE, THRISSUR. 2. VRINDA VENUGOPAL, W/O DR. C.V. VENUGOPAL VRINDAVAN, PUTHENPALLI P.O., CHAVAKKAD. 3. K.RAMESHKUMAR, S/O KARANKARAVEETTIL, LATE M.R.K. MENON, VELIYANNUR DESOM, THRISSUR VILLAGE, THRISSUR DISTRICT. 4. K.DINESHKUMAR, S/O KARANKARAVEETTIL LATE M.R.K. MENON, VELIYANUR DESOM, THRISSUR VILLAGE, THRISSUR DISTRICT. ADV. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON 13/8/2009 DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 241 OF 2008 -------------------------------------------------------- Dated 13th August 2009 Judgment BHAVADASAN, J. Aggrieved by the order dated 3.9.2008 in IA 2269/06 in OS 1152/04 by which the application filed by the plaintiff to institute the suit as an indigent person was dismissed, the plaintiff before the court below has approached this court by filing this appeal. 2. The suit is one for realisation of damages, filed by the Plaintiff. There was an agreement between him and the defendants and the defendants committed breach of contract. At the time of institution of the suit, he paid 1/10th of the court fee required to be paid as per the provisions of the Kerala Court Fees and Suits Valuation Act and when he was asked to pay the balance court fee, IA No.2269/06 was filed, pointing out that he had no means to pay the balance court fee. Though the plaintiff is a building contractor, he had set backs in his business and now he is under financial constraints. The court fee required to be paid comes to Rs.86,000/-. The petitioner in the IA/plaintiff FAO 241/08 2 has disclosed his assets in the schedule attached to the petition. 3. The respondents resisted the petition. According to them, the petitioner holds immovable properties and has considerable assets at his disposal. He has been doing business in a large scale. They maintain that the petitioner has means to pay the court fee. 4. As is necessary under the provisions of the CPC, a copy of the petition was sent to the District Collector for his report. That was not received. 5. The court below had the petitioner examined as PW1 and came to the conclusion that the petitioner had concealed facts and is not entitled to any relief in the petition. Accordingly, the petition was dismissed. 6. The learned counsel for the appellant pointed out that the court below has proceeded on conjunctions and surmises and has not taken into consideration, the materials before it. It is further pointed out that the only property in which the residential building of the petitioner is situated, is now under attachment in another suit instituted by the defendants as OS 1203/05 and he FAO 241/08 3 has no disposal right as of now over the said property. He also submitted that merely because he has not produced the copy of the income tax returns before the court below, it cannot be said that he has means to pay the court fee. 7. Normally, the issue regarding payment of court fee is a matter between the State and the petitioner. Usually, the defendants do not have much say in the matter unless there is a question of jurisdiction involved in the case. The appellant submits, the petition was dismissed merely based on the statements made by him in his cross examination. It is true that the petitioner could have produced copies of his income tax returns before the court below. There is no material to show the income derived by him during the relevant period. As far as his bank account is concerned, he has positively stated that the account was a dead account. Taking into consideration the above facts, it does not appear that the court below was justified in disallowing the application. But the matter does not end here. 8. The learned counsel for the appellant pointed out that it is well settled that the test to be applied is whether the applicant FAO 241/08 4 had sufficient funds with him to pay the court fee. It has always been the view of the courts that merely contending that by selling his assets, he could have raised funds, is no ground to disallow the application. 9. Even assuming the above contentions are acceptable, this appeal will have to be dismissed on another ground. As per Order XXXIII Rule 2 CPC, the appellant is bound to disclose his assets with the estimated value thereof in the schedule to be annexed to the petition. In the case on hand, the court below has noticed that the value of the property which belonged to the appellant has not been shown. The petition is not seen filed in terms of Order XXXIII Rule 2 CPC. The consequence is mentioned under Order XXXIII Rule 5 CPC. The said provision says that the court shall dismiss a petition, which is not framed in the manner prescribed by Rules 2 and 3. It is therefore, mandatory for the court to scrutinise the application and see that it is filed in accordance with the provisions. In the case on hand, as already noticed, the petitioner before the court below has not disclosed the value of the property owned and possessed by FAO 241/08 5 him. If that be so, going by Order XXXIII Rule 5(a) CPC, the petition is only to be rejected. 10. In the result, the order dismissing the petition is upheld on the ground that the petition is not filed in conformity with Order XXXIII Rule 2 CPC. The appeal is therefore, dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 241/08 6