IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 FAO.No. 70 of 2010(R) --------------------- (I.A.NO.3441/2003 IN OS.320/2003 of ADDL.SUB COURT,KOTTAYAM) .................... APPELLANT/PLAINTIFF --------------------------------------- MRS.RAJAMMA JOSEPH, AGED 55 YEARS, W/O.LATE K.T.JOSEPH, KULANGARA PUTHENPARAMBIL, KUNNAMTHANAM P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.ALIAS M.CHERIAN RESPONDENT(S)/DEFENDANTS: --------------- 1. MR.BINU PRASAD, AGED 36 YEARS, S/O.K.V.SAIKUMAR, INDU BHAVAN, MADHUMOOLA, CHANGANACHERRY, KOTTAYAM DISTRICT. 2. MR.K.V.SASIKUMAR, AGED 60 YEARS, S/O.KRISHNANKUTTY, VIRIVUSSERIL, INDU BHAVAN, MADHUMOOLA, CHANGANACHERRY, KOTTAYAM DISTRICT. 3. MRS.SANTHAMMA, AGED 56 YEARS, W/O.SASIKUMAR, VIRIVUSSERIL, INDU BHAVAN, MADHUMOOLA, CHANGANACHERRY, KOTTAYAM DISTRICT. ADV. SRI.M.C.JOHN FOR R1-3 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ F.A.O.No. 70 OF 2010 ------------------------ Dated this the 30th day of June, 2010 JUDGMENT Pius C.Kuriakose, J. Under challenge is an order of Additional Subordinate Judge, Kottayam dismissing I.A. No.3441/2003 which was an application submitted by the appellant/plaintiff for permission to institute a suit against the respondents as an indigent person. The Court in the first instance dismissed the application on the reason that evidence disclosed that the appellant was maintaining three bank accounts. This Court, however, set aside that order and remanded the matter back to the Sub Court for enabling the appellant to show that in the accounts sufficient amounts were not there to the credit of the account holder. After remand, further evidence was adduced by the parties. The evidence revealed that the appellant, as had been conceded by her in the petition itself, was possessed of 23 cents of immovable property in Kunnamthanam village by virtue of Ext.B1 sale deed. The learned Subordinate Judge took the view that it is always possible for the appellant to dispose of portion of that property and raise FAO.No.70/2010 2 necessary court fees. The learned Subordinate Judge, therefore, dismissed the application. 2. The appellant came to this Court again by filing F.A.O. No.107/2009. Before this Court it was contended by the respondents that even if the judgment of this Court in Pathuma v. K.S.E. B(1997 (2) KLT 227) which lays down the proposition that it is not necessary that a plaintiff sells a portion of her immovable property for raising court fees and the question to be considered is whether there is sufficient income from the property so as to enable the plaintiff to immediately pay the court fee applies, then also the appellant was possessed of yet another item of property extending to 20 cents obtained by her by virtue of Ext.B3 settlement deed. Before this Court it was argued on behalf of the appellant that the non disclosure of the availability of 20 cents of property covered by Ext.B3 settlement deed was not wilful. It was also argued for the respondent that the appellant has not even sufficient details even regarding the property disclosed, so as to enable the respondents to test the correctness of the claim that there was no income from the properties. This Court disposed of F.A.O. No.107/2009 holding FAO.No.70/2010 3 that 23 cents of property covered by Ext.B1 need not be reckoned with, in view of the judgment of this Court in Pathuma v. K.S.E. B(1997 (2) KLT 227). However, this Court found it necessary that the Court below examines the question whether the non disclosure of 20 cents of property covered by Ext.B3 was wilful i.e. whether the omission to disclose the availability of that property was bona fide one. This Court accordingly set aside the order, which was under challenge and remanded the issue back once again to the Court below permitting the appellant to adduce evidence to show that there was no wilful non disclosure on her part in the matter of the 20 cents of property covered by Ext.B3. After remand the appellant filed I.A. No.412/2010 seeking an amendment of the schedule portion of the original petition. In the affidavit in support of that I.A., the appellant explained that she came to obtain 20 cents covered by Ext.B3 only four years after the institution of the suit. Apart from offering such an explanation, she discloses that she was having fractional interest along with her two sons over another extent of 10 cents of land in Thrikodithanam village. Her explanation as regards the above property, which will be referred to as Thrikodithanam FAO.No.70/2010 4 property, was that Thrikodithanam property was purchased in her name and in the names of her sons by her deceased husband and that she was not aware of the existence of such property in their names till the period of filing of the amendment application. The amendment sought for was ultimately allowed by the Court. Even though an opportunity was given, both sides did not adduce any further oral evidence. The learned Subordinate Judge under the impugned judgment has found that the appellant has not adduced any evidence to substantiate her contention that the omission on her part in not disclosing the availability of 20 cents covered by Ext.B3 and Thrikodithanam property was a bona fide one and accordingly dismissed the application filed by the appellant once again. 3. In this appeal various grounds have been raised assailing the decision of the learned Subordinate Judge and we have heard the submissions of Sri. Alias M.Cherian, learned counsel for the appellant and also those of Sri.M.C.John, learned counsel for the respondents. 4. Mr.Alias M.Cherian would argue that the Court below was not justified in blaming the appellant for not having adduced FAO.No.70/2010 5 evidence pursuant to the remand order passed by this Court. According to him, in the affidavit in support of the amendment application, sufficient explanation had been offered regarding the 20 cents covered by Ext.B3. As for the Thrikodithanam property, there was a voluntary disclosure by the appellant. Once the amendment application stood allowed the explanation offered by the appellant regarding Ext.B3 property as well as the Thrikodithanam property also stood accepted. 5. Mr.M.C.John per contra, would submit that the circumstance that the amendment application was allowed by the Court will not be in any moment while considering whether evidence has been adduced by the appellant to show that the non disclosure of property covered by Ext.B3 and the Thrikodithanam property by the appellant was wilful and without bona fides. 6. We have very anxiously considered the rival submissions addressed at the Bar. As stated already, this Court remanded the matter back to the Sub Court vide Judgment in F.A.O. No.107/2009 for enabling the appellant to adduce evidence for substantiating her stand that non disclosure of Ext.B3 property FAO.No.70/2010 6 and any other property held by her at the relevant time was not willful and was the result of bona fide omission. As rightly noticed by the learned Subordinate Judge, the appellant for reasons best known to her, did not adduce any evidence. May be the appellant has convincing explanation to offer regarding the non disclosure of Ext.B3 property and Thrikodithanam property while filing the Original Petition. But, so long as she does not mount the box and give evidence, we are not in a position to blame the Court below for taking the view that despite opportunity given by this Court, the appellant has not given evidence to show that the non disclosure was a bona fide one. This Court while deciding FAO 107/2009 observed that the suit has been hanging fire for six years. We notice that one more year has passed. According to us, it is high time that the present issue as to whether the appellant should be permitted to institute the suit as an indigent person is finally decided. 7. Having regard to the totality of the circumstances attending on the case, we are inclined to grant one last opportunity to the appellant to convince the Court below that the non disclosure of property covered by Ext. B3 and the FAO.No.70/2010 7 Thrikodithanam property was not wilful. Hence, we set aside the order under challenge and remand I.A. No.3441/2003 back to the Additional Subordinate Judges Court, Kottayam. The parties will enter appearance before that Court on 19/7/2010. The learned Subordinate Judge will post the I.A. for evidence giving at least one opportunity to the appellant to adduce evidence. If the appellant adduces evidence, opportunity should be given to the respondents also to adduce counter evidence. The learned Subordinate Judge will ensure that final decision is taken in I.A. No. 3441/2003 at the earliest and at any rate on or before 15/8/2010. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk