IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 FAO.No. 107 of 2009() --------------------- AGAINST THE ORDER DATED 20/03/2009 IN IA 3441/2003 IN OS.320/2003 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT/PLAINTIFF --------------------------------------- MRS.RAJAMMA JOSEPH, AGED 54 YEARS, W/O.LATE K.T.JOSEPH, KULANGARA PUTHENPARAMBIL, KUNNAMTHANAM P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.ALIAS M.CHERIAN RESPONDENTS/ DEFENDANTS ------------------------------------------------- 1. MR.BINU PRASAD, AGED 35 YEARS, S/O.K.V.SASIKUMAR, INDU BHAVAN, MADHUMOOLA, CHANGANACHERRY, KOTTAYAM DISTRICT. 2. MR.K.V.SASIKUMAR, AGED 59 YEARS, S/O.KRISHNANKUTTY, VIRIVUSSERIL, INDU BHAVAN, MADHUMOOLA, CHANGANACHERRY, KOTTAYAM DISTRICT. 3. MRS.SANTHAMMA, AGED 55 YEARS, W/O.SASIKUMAR, VIRIVUSSERIL, INDU BHAVAN, MADHUMOOLA, CHANGANACHERRY, KOTTAYAM DISTRICT. ADV. SRI.M.C.JOHN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/8/2009, THE COURT ON 22.12.2009 PASSED THE FOLLOWING: ORDER ON I.A. 1601 OF 2009 IN F.A.O. NO: 107 OF 2009 DISMISSED: 22/12/2009 SD/- P.R.RAMAN, JUDGE SD/- K.SURENDRA MOHAN, JUDGE jj /TRUE COPY/ P.S. TO JUDGE P.R.RAMAN & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ F.A.O NO: 107 OF 2009 ----------------------------------------------------------------------------------- Dated this the 22nd December, 2009. O R D E R SURENDRA MOHAN, J. The plaintiff in O.S.320/2003 of the Sub Court, Kottayam has preferred the above appeal challenging an order dated 20.3.2009 passed by the Sub Court dismissing I.A.3441/2003. The petition was filed seeking permission of the Court to institute the suit as an indigent person. The Court has dismissed the petition finding that the appellant/petitioner was possessed of sufficient means to pay the requisite court fee. The said order is under challenge in this appeal. 2. The appellant had filed the suit for the recovery of an amount of Rs.7,67,625/- with future interest from the respondents/defendants. According to the appellant, the defendants had borrowed an amount of Rs.7.5 lakhs from her and had executed a demand promissory note for the said amount in her favour, on 16.3.2003. Thereafter, the defendants paid the interest without default till July 2003. However, the principal amount was not paid. Therefore, the appellant demanded payment of the said FAO 107/2009 2 amount. Thereupon the defendants issued a cheque dated 20.7.2003 to her. However, when the cheque was presented for encashment the same was returned dishonoured due to insufficiency of funds in the bank account. Though the appellant demanded payment of the cheque amount as per letter dated 1.8.2003, the amount was not paid. Therefore, she filed the suit for recovery of the amount borrowed, from the defendants. 3. At the time of institution of the suit the appellant had remitted the 1/3rd court fee that was payable on the suit. According to her, the total court fee payable is Rs.75,163/-. After giving credit for the 1/3rd court fee already paid, the balance court fee payable by the appellant is Rs.67,646/-. 4. It is the case of the appellant that she is not in a position to raise the balance court fee that is payable in the suit. She is a widow who is residing with her mother. She possesses property having an extent of 23 cents in Kunnamthanam Village. According to her, there is no income from the said property. She is not possessed of any other property of her own. She is employed on contract basis as an accountant in Mar Xavarious Memorial Training College, Chenganoor and she is getting a monthly remuneration of Rs.4,000/-. She has no other income. She also has to look after FAO 107/2009 3 her family. Therefore, she has no means to pay the balance court fee and hence, sought permission to file the suit as an indigent person. 5. The petition was contested by the defendants. The first respondent/1st defendant filed counter affidavit disputing the averments of the appellant/plaintiff. According to the first respondent, the suit itself was based on negotiable instruments alleged to have been issued towards repayment of an amount of Rs.7.5 lakhs. The averments in the plaint itself showed that the appellant was a person who had the capacity to raise such a huge amount as Rs.7.5 lakhs at short notice. She was a financially sound person and had the capacity to pay the court fee. But, since the appellant was not confident that she would be able to succeed in the suit as it was based on forged documents, she has filed the petition to institute the suit as an indigent person. According to the first respondent, the contention of the appellant that she had no source of income to raise the requisite amount for paying the balance court fee in the suit was false. Therefore, the first respondent prayed for dismissal of the petition. 6. The court below enquired into the allegations and counter allegations. Both parties adduced evidence, both oral and FAO 107/2009 4 documentary in support of their contentions. On the side of the appellant/petitioner P.Ws 1 and 2 are examined as witnesses and Exts. A1 to A6 documents marked. C.P.W.1 is examined as a witness and Exts. B1 to B3 documents marked on the side of the respondents. On a consideration of the evidence on record, the court below came to the conclusion that the petitioner had the capacity to raise the necessary amounts for payment of the court fee in the suit. Therefore, it has been held that the appellant was not a person who could be considered as not being possessed of sufficient means to pay the court fee in the case. Therefore, the petition filed by the appellant has been dismissed. 7. Mr. Alias M. Cherian, learned counsel for the appellant contended that the court below seriously erred in dismissing the application filed by the appellant. The court below has found that the appellant/petitioner was not possessed of sufficient funds to pay the court fee and that she does not have any income. However, the court below has found that the appellant was possessed of immovable properties, portions of which she could sell for raising the necessary amounts for paying the court fee in the present case. The counsel pointed out that the appellant had no job or other income. Her immovable properties were not yielding FAO 107/2009 5 her any income. In view of the above, it is contended that the order of the court below is liable to be set aside. 8. Mr. M.C.John who appears for the respondents pointed out on the other hand that the appellant was a person in very affluent circumstances. According to him, she was capable of paying the court fee that was due. It is pointed out by the counsel that the appellant had deliberately suppressed an item of immovable property that she had and, therefore, in view of the dictum laid down by this Court in the decision reported in Mathew v. State of Kerala {1996(2) KLT 363}, the petition filed by her was liable to be rejected. It is further contended that there is no mention of the appellant's bank accounts in her petition. However, she has produced Exts. A2 to A5 which show that she was having bank accounts in various banks. The bank statements produced showed that she had been transacting with all the banks regularly. Therefore, according to the counsel, the appellant had sufficient means to pay the court fee that was due. Mr. M.C. John has also shown us two photographs of the house owned by the appellant and contended that without any difficulty the appellant would be able to pay the amount of court fee due on the suit. Therefore, he prays for dismissal of the appeal. FAO 107/2009 6 9. We have heard counsel for the contesting parties in detail. We have also considered the rival contentions of the parties, anxiously. 10. It is true that the appellant had not disclosed the details of her bank accounts in the petition for permission to sue as an indigent person. It is also true that she has shown only 23 cents of vacant land at Kunnamthanam Village and an old residential building therein worth Rs.1,50,000/- as her only property. However, as P.W.1, she has admitted that she owns a residential building and other properties. It has also come out in evidence that the property covered by Ext.B1 sale deed is also owned by her. It is the case of the respondents that since she has omitted to disclose all the assets in her petition, permission to sue as an indigent person was liable to be refused to her. 11. A consideration of the evidence in the case clearly shows that the appellant is a widow and that she is not earning any income. Even the items of evidence produced by the respondents do not show that the appellant is having any income from the properties that she is alleged to be owning. Though at the time of filing the petition, the appellant was working in Mar Xavarious Memorial Training College, the evidence of P.W.2, the Principal of FAO 107/2009 7 the said college and the attendance register produced by her show that the petitioner has not been working in the said institution since 18.4.2005. It is seen from Exts. A2 to A5 bank accounts that the bank balance of the appellant is only a very meagre amount. The bank pass books do not evidence transactions of a substantial nature. According to the appellant, she lost her husband on 20.9.1986. Ext. A6 medical certificate shows that she is also not keeping good health. According to the appellant, the suit claim constitutes the entire savings of her life. Though the petition was hotly contested by the respondents, nothing is on record to show that the appellant is earning income that is sufficient to pay the court fee payable in this case. However, the court below has dismissed the application holding that the appellant could very well raise the court fee by selling a portion of the immovable property admittedly owned by her. It is also worth noticing that the court below has not found any formal defect in the petition or a lack of disclosure of necessary particulars of the properties owned by her as contended by the respondents. Therefore, the first question that arises for consideration is whether the appellant is possessed of sufficient means to pay the court fee that is payable on the suit. FAO 107/2009 8 12. As per Explanation I of Order 33 Rule 1, a person is an indigent person if he is not possessed of 'sufficient means' to pay the court fee. Therefore, the provision contains a concession that is available to a person who has no sufficient means to pay the court fee. It is not necessary that the person should be one with no means at all. He may be possessed of properties and possessions but, if he does not have sufficient means to pay the court fee he is entitled to the benefit of the concession enacted. Therefore, the nature of the enquiry should be to find out whether a person is possessed of sufficient means to pay the court fee. For the purpose, the property exempt from attachment are to be excluded. It is also to be remembered that the capacity to raise the necessary court fees is to be considered as the capacity to raise such amount in the normal circumstances. He is certainly entitled to exclude an amount that is necessary to meet the basic requirements of his life. 13. On an analysis of the provision and the legislative intent underlying the enactment, this Court has held in Xavier v. Kuriakose {1987(1) KLT 176} as follows:- “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 FAO 107/2009 9 facts of the case and the court has to ascertain if he is capable of raising the court fee in normal circumstances. A straight jacketed interpretation cannot be made on the language of the rule. The Code uses the expression 'sufficient means' which is, means sufficient to pay court fee, after meeting the basic requirements of life. An interpretative process consistent with the Constitutional Directives and philosophy must prevail. Art.39A of the Constitution of India envisages equal justice and free legal aid an the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and ensure “that opportunities are not dented to any citizen by reason of economic or other disabilities.” Total destitution is no pre-requisite to seek justice. If he has not sufficient means to pay court fee, justice shall not be denied to him. Innovate we do not; we interpret the rules to achieve the objects behind it and to reach its benefit to those it is intended for.” 14. In Pathuma v. K.S.E.B {1997(2) KLT 227} another Division Bench of this Court considered the import of the very same provision in the context of an order passed by the Court below holding that the appellants therein were liable to raise the necessary amount for payment of court fee by selling six cents of land from the plaint A schedule property. This Court made the FAO 107/2009 10 following observations while considering the question that arose for consideration. “The question to be considered is not mere possession of property by the appellants, but sufficient means, that is the capacity to raise money to pay court fee and it is incumbent upon the court to come to a finding on that point. The capacity to raise money is the crux of the matter and this turns on immediate convertability of the property into cash {Krishna Iyer, J in Janakykutty v. Varghese (1969 KLT 953)}. Viewing the matter from a practical stand- point, it has to be held that an indigent person need not be bereft of all material possessions. The C.P.C confers the benefit on persons without “sufficient means”. It refers not to a person without any means. On the other hand the expression used is “sufficient means” which is, means sufficient to pay court fee after meeting the basic needs of life. {Xavier v. Kuriakose(1987 (1) KLT 176)}. The possession of “sufficient means” in order 33 R.1 CPC means possession of sufficient realisable property within the immediate reach of the plaintiff(s) which can be immediately converted into cash. Debts due to be realised or assets not within the immediate reach of the plaintiff(s) to be converted into cash cannot therefore, be taken into consideration for calculatring sufficient means. (Prabhakaran Nair v. Neelakantan FAO 107/2009 11 Pillai {1987(2) KLT 376}.” 15. In the light of the principles laid down by the decisions referred to above, it is clear that what is to be examined is whether the appellant is possessed of sufficient means to pay the requisite court fee. Though it cannot be denied that the appellant owns substantial items of immovable properties, it has not been shown that she derives any income therefrom. Though the appellant had a temporary job in Mar Xavarious Memorial Training College it has come out in evidence that she is no longer working in the said institution. The pass books of her bank accounts do not disclose amounts sufficient to pay the court fee payable in the case. It is not disputed that the appellant is a widow who has a family to maintain. Ext. A6 medical certificate further shows that she is not enjoying good health. In the above circumstances it cannot be said that the appellant is possessed of sufficient means to pay the court fee payable in the case. The reasoning of the court below that she could very well raise the required amount for paying the court fee by selling a portion of the immovable property owned by her is unsustainable and has been held to be so by this Court in the decision reported in {1997(2) KLT 277} also. 16. Counsel for the respondents has raised a further FAO 107/2009 12 contention that the non-disclosure of all her assets in the petition by the appellant was fatal. According to the counsel, an omission to mention a particular asset in the petition would disentitle the appellant from claiming the benefits of the provision contained in Order 33 of the Code. The counsel has placed reliance on the decision in Mathew v. State of Kerala (supra). In the said decision, a Division Bench of this Court has held that the provisions of Rule 2 of Order 33 contemplates the scheduling of all movable and immovable properties belonging to the petitioner with the estimated value thereof to the petition. When an applicant does not disclose an asset held by him in his application, whatever be the reason, on the wording of Rule 2 of Order 33 of the Code, the application is liable to be rejected in terms of Order 33 Rule 5(a) of the Code. However, the said decision has also noticed the fact that cases may arise where either due to inadvertance or for reasons beyond his control, an applicant might omit to include an item of property in his application for permission to sue as an indigent person. If before the final disposal of the application, the applicant takes steps to include the said item also in the schedule to the application and satisfies court that the original omission was bonafide, the defect could be cured. Considering the question as FAO 107/2009 13 to whether a full and complete disclosure of all the assets of the applicant was a necessary pre-requisite for taking the benefit of Order 33 Rule1, the Court has made the following observation: “Under the scheme of Order 33 of the Code, a plaintiff is exempted from paying the Court fee that is payable by any other litigant who comes to court for relief at the time of institution of the suit on the ground that he is not in a position to pay the court fee. If a plaintiff seeks such a special privilege to pursue his litigation, is there any reason not to insist on his strictly complying with the requirement of Order 33 of the Code and coming to court with clean hands? According to us, there is no jurisdiction for removing the immunity available to the defendant in a suit and to grant a right to the plaintiff to prosecute the suit without payment of the Court fee unless the plaintiff comes to court with clean hands, making a disclosure of all his assets. The word 'any movable or immovable property' used in O.33 Rule 2 according to us ought to be given its natural meaning and on the scheme of the Code, it is clear that failure to comply with any of the requirements of O.33 R.2 or R.3, should entail the rejection of the permission sought for by a plaintiff.” 17. The Court went on to consider the question as to whether the rejection of an application under Order 33 Rule 1 could be only under Rule 5(b) of the Code or whether the rejection could be under Rule 5(a) in such circumstances. Holding that the rejection could be under Rule 5(a) of Order 33 of the Code, the Court also held that such rejection could be avoided by establishing that the omission FAO 107/2009 14 was the result of a bonafide mistake. At page 369 of the same judgment, P.K.Balasubramanyan, J (as he then was) has summed up the legal position as follows:- “With respect, we are of the view that the rejection could be under O.33 R. 5(a) of the Code in such a situation and a rejection under O.33 R.5(a) of the Code can be warded off by an applicant for permission to sue as an indigent person, only by establishing that it was a bonafide omission on his part to include the asset and only after getting the application for permission amended to accord with the requirement of O.33 R.2 of the Code.” 18. In view of the above affirmative dictum, it is clear that an omission to include any of the assets of the plaintiff in the petition filed under Order 33 Rule 1 can be purged only by following the procedure laid down in the above dictum. 19. In the instant case, the order of the court below has not considered the above aspect at all. We feel that in all probability, the above objection regarding the form and content of the appellant's application had not been raised or pressed before the court below. Therefore the court below has not considered the above aspect of the matter. The court below has also not considered whether the omission of the appellant to include all her assets in the petition was deliberate or due to a bonafide inadvertent omission. Since the appellant is entitled to overcome FAO 107/2009 15 the defect by showing that her omission was not bonafide, there is no justification for denying to her the said right. Therefore, the matter requires to be considered afresh by the court below in the light of the principles indicated above. 20. The reasoning of the court below that the appellant should sell a portion of her immovable property to raise necessary funds for payment of the court fee payable in the case is unsustainable. Therefore, the rejection of the application filed by the appellant on the said ground by the court below is wrong. At the same time, it is not equitable to reject the petition under order 33 Rule 5(a) of the Code for non-disclosure of all her assets by the appellant, in appeal without affording an opportunity to her to prove that the omission was bonafide. Therefore, we set aside the order of the Sub Court, Kottayam in I.A.3441/2003 in O.S.320/2003 and remit the case back for fresh consideration and disposal in accordance with the principles referred to above. 21. We notice that the suit is of the year 2003 and that the same has been hanging fire for the last more than six years on the question of payment of court fee. Therefore, we direct the Court below to consider and pass orders on the petition as expeditiously as possible and at any rate within a period of two months from the FAO 107/2009 16 date on which the parties enter appearance in the suit. The parties shall appear before the Sub Court, Kottayam on 20.1.2010. The appeal is allowed as indicated above. No costs. P.R. RAMAN Judge K. SURENDRA MOHAN Judge jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. --------------------------------------- L.A.A.NO: --------------------------------------- JUDGMENT Dated: