IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 FAO.No. 122 of 2007 AGAINST THE ORDER DATED 27.3.2007 IN INDIGENT OP.34/2005 OF THE ADDL.SUB COURT,KOLLAM APPELLANTS: PETITIONERS: PLAINTIFFS: -------------------- 1. SARAVANAN, S/O.SIVARAMAKRISHNAN ASARI, RESIDING AT SRASWATHY NIVAS, AYANI ROAD, CONTONMENT WARD KARPOORAMCHERY,VADAKKEVILA, KOLLAM. 2. RAMANATHAN, OF -DO-. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS: DEFENDANTS: RESPONDENTS: --------------- 1. SAJEEV, S/O.GOPALAN, RESIDING AT VETTAMPARAM PUTHEN VEEDU, PUNNATHALACHERRY,KOLLAM WEST. 2. G.JAYAN, S/O.GOPALAN, RESIDING AT VIJAYALAYAM, MANAYILKULANGARA CHERRY, KOLLAM WEST. 3. SURAN, S/O.GOPALAN, KARTHIKA, THIRUMULLAVARAM, KOLLAM WEST. 4. ANIRUDHAN, S/O.GOPALAN, RESIDING AT VELLAPARAMPATH VEEDU,PUNNATHALA CHERRY, KOLLAM WEST. ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON 26/11/2009 PASSED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- F.A.O. NO. 122 OF 2007 ------------------------------------------------------------- Dated this the 26th day of November, 2009 JUDGMENT K.T.Sankaran, J. The appellants challenge in this Appeal the order dated 27.3.2007 in Indigent (O.P.)No.34 of 2005, on the file of the Court of the Additional Subordinate Judge, Kollam, by which the court below dismissed the petition filed by the appellants under Order XXXIII Rule 1 of the Code of Civil Procedure. 2. The appellants are the plaintiffs in the suit. The total valuation in the suit is Rs.20,71,000/-. Court fee of Rs.1,09,100/- is payable. The appellants contended that they are not possessed of sufficient means to pay the court fee. Their movable and immovable properties are scheduled to the petition. 3. The case of the appellants is that they are the owners of the plaint A schedule property. They were conducting a jewellery on partnership basis. The appellants had to borrow money from the first respondent on different occasions. The first respondent obtained F.A.O. NO.122 OF 2007 :: 2 :: signed blank cheques and blank stamp papers from the appellants. The appellants repaid a sum of Rs.52,18,500/-. However, the payment was adjusted towards interest. The first respondent, with the help of the Circle Inspector of Police, managed to get a document executed by the appellants styling the same as a sale deed. In fact, the document is a security document and not a sale deed. The property is still in the possession of the appellants. The respondents attempted to take forcible possession of the property. They created a document using the signed blank papers. 4. The respondents filed objections in the Indigent (O.P.). They contended that the appellants have sufficient funds to pay the court fee. 5. Before the court below, PW1 was examined and Exts.A1 to A17 were marked on the side of the appellants. Exts.B1 to B4 were marked on the side of the respondents. No oral evidence was adduced by the respondents. 6. The court below held that the oral evidence of PW1 and Exts.A1 to A17 would show that the plaint B schedule property, F.A.O. NO.122 OF 2007 :: 3 :: which, according to the appellants, is their only asset, was under attachment in nine suits. The respondents relied on Exts.B1 to B4 to contend that the appellants have assigned their valuable property. On considering Exts.B1 to B4, the court below held that the properties covered by Exts.B1 to B4 belonged to the wives of the appellants and, therefore, the contention put forward by the respondents cannot be accepted. It was also held that those items were sold more than two months prior to the institution of the suit. On the basis of this finding, the Indigent (O.P.) was liable to be allowed. However, the court below relied on the pleadings in the case and held that the appellants have a case that on 27.11.2005 they approached the respondents and expressed their willingness to pay the amount due to the respondents in order to get release of the property. That means that the appellants were possessed of sufficient funds and, therefore, it must be held that the appellants are capable of paying the court fee. The Indigent (O.P.) was filed on 13.12.2005. The court below held that the appellants having expressed their readiness to pay a sum of Rs.20,70,000/- on 27.11.2005, it cannot be believed that they are not having sufficient funds on 13.12.2005, no change of circumstance having taken place in the meanwhile. The court below held that the appellants are F.A.O. NO.122 OF 2007 :: 4 :: having sufficient funds to pay the court fee and accordingly, the Indigent (O.P.) was dismissed. 7. Learned counsel for the appellants pointed out that the court below was not justified in taking out of context one sentence from the pleadings to hold that the appellants have sufficient resources to pay the court fee. In the same paragraph in which the appellants have stated that they were willing to pay the amount, it was stated that “seeing the pathetic condition of the petitioners/plaintiffs, some of their well wishers have come forward to help them by providing the required amount by way of loans for the purpose of releasing the property”. It is submitted that if the averments were taken into account as a whole, the court below would not have arrived at the conclusion that the petitioners were having sufficient resources at the relevant time. 8. We are of the view that there is merit in the contention put forward by the learned counsel for the appellants. It is specifically stated in paragraph 6 of the Indigent O.P. that some of the well wishers of the appellants had assured to help the appellants. Simply because the appellants offered to pay certain amounts after raising F.A.O. NO.122 OF 2007 :: 5 :: funds with the help of their relatives, it cannot be said that they are having sufficient funds to pay the court fee. Permitting the appellants to file the suit as indigent persons does not mean that they are precluded for ever from paying the court fee. If the suit is dismissed, the court fee could be realised from them. If the suit is decreed, the amount of court fee would form part of the costs. In the matter of payment of court fee, the role of the respondents is limited. Of course, the respondents in the Indigent O.P. are entitled to contend that the petitioners therein are possessed of sufficient means to pay the court fee. In the facts and circumstances of the case, we are of the view that the Indigent Original Petition is liable to be allowed. Accordingly, we allow the Appeal, set aside the order passed by the court below and allow Indigent (O.P.) No.34 of 2005, on the file of the Court of the Additional Sub Court, Kollam. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/