IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 CRP.No. 2070 of 2003() AGAINST THE ORDER DATED 16/09/2003 IN IA.6364/1999 IN OS.699/1998 of II ADDL.SUB COURT,ERNAKULAM REVN. PETITIONERS: RESPONDENTS 1 & 2/DEFENDANTS 1 & 2: --------------------- 1. K.K.JAYARAJ, S/O.LATE KOCHOUL, RESIDING AT 39/4886 SREELAKSHMI, THOUNDAYIL LANE, PERUMANOOR DESOM, ERNAKULAM VILLAGE. 2. VISALAKSHI, W/O.K.K.JAYARAJ, -DO- -DO- BY ADV. SRI.BABU CHERUKARA RESPONDENTS: PETITIONER & 3RD RESPONDENT: PLAINTIFF & 3RD DEFENDANT: --------------- 1. K. KALYANI, W/O.LATE KOCHOUL, RESIDING AT JAYAREKHA COTTAGE, THEKKANEZHATH, KALATHIPARAMBIL ROAD, ERNAKULAM VILLAGE. 2. GEORGE JOSEPH, THALIYATH HOUSE, PERUMANOOR DESOM, ERNAKULAM VILLAGE. R1 BY ADV. SRI.K.G.SARATHKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A.NO.2512/2003 IN C.R.P.NO.2070/2003 DISMISSED 04/04/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. ---------------------------------------------------- C.R.P. NO. 2070 OF 2003 F ---------------------------------------------------- Dated this the 4th day of April, 2008 O R D E R Defendants 1 and 2 challenge the order passed by the court below allowing the application under Rule 1 of Order XXXIII of the Code of Civil Procedure, by which the first respondent/plaintiff was allowed to continue the suit as an indigent person. Total court fee payable was Rs.9,625/-. The plaintiff paid one tenth of the court fee. Contending that she was not in a position to pay the balance court fee, she filed I.A.No.6364 of 1999 under Rule 1 of Order XXXIII of the Code of Civil Procedure. The first petitioner/first defendant filed objection to the application. He contended that the plaintiff has sufficient means to pay the court fee. The plaintiff was examined as PW1. She stated that she is a widow. She is a retired Health Assistant getting Rs.900/- per month as pension. She stated that she does not have any job or income or asset other than those movables shown in the application. It was stated that the amount received as pension is hardly sufficient for the expenses. Relying on the evidence of PW1, the court below held that the plaintiff is entitled to get exemption from paying the balance court fee. 2. Learned counsel for the petitioners submitted that the court below was not justified in allowing the application, the plaintiff having paid C.R.P. NO.2070 OF 2003 F :: 2 :: one tenth of the court fee and she having not proved any change of circumstance from the date of filing of the suit. In short, the contention is that at the time when the suit was filed, the plaintiff was confident that she was able to pay the court fee. That was why she did not file an application under Order XXXIII Rule 1 at that time and preferred to pay one tenth of the court fee which indicates that as on the date of filing of the suit she was not an indigent person. At the time when the balance court fee is to be paid, the plaintiff cannot contend that she is an indigent person, unless it is proved that the the change of circumstances warrant a conclusion that she has now become an indigent person disabling her to pay the balance court fee. 3. Rule 1 of Order XXXIII of the Code of Civil Procedure provides that subject to the provisions contained in Order XXXIII, any suit may be instituted by an indigent person. Explanation I to Rule 1 states that a person is an indigent person if he is not possessed of sufficient means to enable him to pay the court fee. Explanation II states that any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Rule 5 provides for rejection of the application on various grounds. Clause (b) therein C.R.P. NO.2070 OF 2003 F :: 3 :: empowers the court to reject the application where the applicant is not an indigent person, and clause (c) empowers the court to reject the application where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person. There are other circumstances also as mentioned in Rule 5, which would result in rejection of the application. Rule 9 provides for withdrawal of permission to sue as an indigent person. The Rule provides that the Court may, on the application of the defendant, or of the Government Pleader, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn, in three contingencies mentioned in clauses (a) to (c). Clauses (b) thereof is that “if it appears that his means are such that he ought not to continue to sue as an indigent person”. If an indigent person succeeds in the suit, Rule 10 provides for recovery of the court fee from the party ordered by the decree to pay the same. Rule 11 provides for recovery of the court fee where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed. In such circumstances, the plaintiff shall be liable to pay the court fee which would have been paid by him had he not been permitted to sue as an indigent person. 4. At the time of institution of the suit, by virtue of Section 4A of the C.R.P. NO.2070 OF 2003 F :: 4 :: Kerala Court Fees and Suits Valuation Act, 1959, the plaintiff need pay only one tenth of the court fee. The balance court fee need be paid within such period, not later than fifteen days from the date of framing of issues. The plaintiff may honestly think that if there is contest in the suit, she would be able to pay the balance court fee within fifteen days after framing the issues. Such a belief of the plaintiff would not bind her for ever, precluding her from getting the benefit of the benevolent provisions of Order XXXIII of the Code of Civil Procedure. If she is bereft of sufficient means to pay the balance court fee, the state of affairs as on the date of plaint may be relevant only for considering whether the plaintiff has disposed of her assets, properties or other resources and claims to be an indigent person at a later point of time. In some cases, the plaintiff who was having sufficient resources may become a pauper subsequently. That does not preclude the plaintiff from filing an application for permission to sue as an indigent person at a later point of time, that is, at the time of payment of the balance court fee. The question to be considered is whether the plaintiff has the means to pay the court fee. It is also relevant to decide whether she has disposed of any of her properties within two months before the institution of the suit or whether there is any contumacious conduct on the part of the plaintiff disentitling her to the benefit of the provisions of Order XXXIII of the Code of Civil Procedure. In the case of loss of assets, properties or resources after C.R.P. NO.2070 OF 2003 F :: 5 :: filing the suit under circumstances in which the plaintiff cannot be blamed at all, or in cases where it cannot be said that there was any contumacious conduct on the part of the plaintiff, the Court would have jurisdiction to grant an application under Order XXXIII Rule 1, even at the stage of payment of balance court fee. The honest belief of the plaintiff that she would be able to pay court fee at a later point of time, would not debar her from claiming the benefit of Order XXXIII if subsequently it is found that she is unable to pay the balance court fee. A set of circumstances leading to the inference that the plaintiff is not an indigent person cannot be presumed to exist as on the date of institution of the suit. The Court cannot, on the basis of such presumption, hold that the plaintiff continues to be a person who is not an indigent at the time when the balance court fee is to be paid. The court cannot presume such set of facts and insist on proof of change of circumstances. Even if a person is really indigent at the time of institution of the suit, he may honestly hope to get some funds by some means so as to pay the balance court fee. The court cannot presume that at the time of institution of the suit, the plaintiff was not an indigent person and proceed with the case on that presumption. The law does not provide for proof of any such change of circumstances by the plaintiff in all cases where exemption from paying balance court fee is claimed. However, if it is proved that the plaintiff had sufficient means to pay the court fee at the time of institution of the suit, C.R.P. NO.2070 OF 2003 F :: 6 :: the plaintiff has to prove change of circumstances and all other relevant facts so as to claim exemption from paying the balance court fee at the stage when it becomes payable. Under the scheme of Order XXXIII, change of circumstance is relevant for the purpose of holding that the plaintiff has ceased to be indigent requiring the plaintiff to pay the court fee at a later point of time and to dispauper her. 5. The first defendant is the son of the plaintiff. Second defendant is the wife of the first defendant. The first defendant stated in the counter affidavit that his mother is having some movables, which are household articles. The defendant did not adduce any evidence whereas the plaintiff stated in evidence the pitiable condition in which she is living. It was not proper for the son of the plaintiff to have contested the application in these circumstances, particularly when the State did not choose to challenge the order passed by the court below. The Civil Revision Petition lacks merits and it is accordingly dismissed. No order as to costs. (K.T.SANKARAN) Judge ahz/