IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 FAO.No. 280 of 2004() --------------------- AGAINST THE ORDER IN INDEGENT OP.7/2003 of ADDL.SUB COURT, KOCHI .................... APPELLANT/PETITIONER: ------------------------------------ T.FRANCIS, AGED 60, S/O.P.J.JOHN, XVI/452, KAZHUTHUMUTTU, KOCHI 5, REP. BY HIS P.A.HOLDER TESSY FRANCIS, W/O.FRANCIS BY ADV. SRI.K.N.SIVASANKARAN SRI.SUNIL SHANKER RESPONDENT(S)/RESPONDENTS: ---------------------------------------------- 1. GUJJU SURAPPADU REDDY, AGED 53, S/O.RAMASWAMY, R/O.CHINNA BAZAR, BHEEMUNIPATANAM, VIZAG 531 163. 2. T.M.THOMAS, S/O.T.J.MATHAI, C/O.AMMINI GEORGE, A3.R.C.GEMS, PLOT NO.40, THIRUVALLOOR ROAD, OPPO.PERAMBUR GARRAGE, PERAMBUR, RAILWAY STATION, CHENNAI 600 001, AND PRESENT R/A.ATHIRA, 34/333, KOMANAPPARAMBIL, PADIVATTOM, EDAPPALLY 682 024. ADV. SRI.KOSHY GEORGE FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 280 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the dismissal of O.P. (Indigent) No.7 of 2003 by the Sub Court, Kochi, petitioner has come up in this appeal. 2. The suit was one for a declaration that the decree passed by the court at Vishaghapattanam was not binding on the plaintiff. The decree was for a sum of Rs.29,51,921/-. Petitioner has filed a petition seeking permission to file the suit as an indigent person. 3. The court below found that a month prior to the filing of the petition petitioner had sold an item of property for Rs.25 Lakhs. It was also found that he had transferred a property in favour of his son. Further her husband, who is the plaintiff, whom she represents in the suit was employed in America. Therefore the court below was inclined to hold that there is material to come to the conclusion that the petitioner was capable FAO. 280/2004. 2 of paying the requisite court fee. 4. One must notice that the decree in O.S.88 of 1996 was passed in 1996 and it is seen from the records that here the petitioner is represented by power of attorney. It is to be seen that the power of attorney holder had given evidence on behalf of the petitioner. It is interesting to note that the power of attorney, who is none other than the wife of the petitioner does not have much idea of the purpose for which the suit had been filed. As already noticed, the evidence discloses that the petitioner had owned properties and they have been sold recently. The reason given by the petitioner for not appearing for giving evidence is that he had met with an accident. The court below has noticed that no document whatsoever was produced in support of the claim. The claim of the power of attorney holder that her husband was in America was disbelieved by the court below especially when it was deposed by her that he had no avocation in USA. Therefore, based on probabilities, the court below came to the conclusion that the claim to sue as in forma pauperis is without bonafides. The court below has considered all the relevant aspects in detail and come to the conclusion FAO. 280/2004. 3 that there is no justification for the claim of the petitioner that he should be allowed to prosecute the suit as an indigent person. No legal or factual infirmities are pointed out in the order of the court below. The appeal fails and it is dismissed. However, the petitioner is given two months time from the date of this order to pay the requisite court fee. Records may be sent to the trial court forthwith. P.R. Raman, Judge P. Bhavadasan, Judge sb.