IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).No. 10728 of 2010(O) -------------------------- OS.230/2004 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONERS: --------------- 1. UNNIKRISHNAN NAMBOOTHIRI, BRAHMAPURAM ILLAM, SASTHAMANGALAM, THIRUVANANTHAPURAM. 2. SUJI MAHESWARI, BRAHMAPURAM ILLAM, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT: --------------- PRASANNAKUMARI @ PRASANNA NAIR, SREE PADMAM, VAZHUTHOOR, NEYYATTINKARA, THIRUVANANTHAPURAM. ADV. SRI.K.B.PRADEEP FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10728 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.230 OF 2004 ON THE FILES OF THE I ADDL. SUB COURT, THIRUVANANTHAPURAM EXHIBIT P2 : PETITION IN I.A.No.4939 OF 2008 IN O.S.No.230 OF 2004 FILED BY THE RESPONDENT EXHIBIT P3 : WRITTEN STATEMENT FILED BY THE PETITIONERS HEREIN, O.S.No.230 OF 2004 EXHIBIT P4 : ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONERS HEREIN, IN O.S.No.230 OF 2004 EXHIBIT P5 : ORDER OF THE COURT BELOW DTD. 10.02.2010 IN I.A.No.4939 OF 2008 IN O.S.No.230 OF 2004 RESPONDENT'S EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 10728 of 2010 --------------------------------------- Dated this 20th day of July, 2010 JUDGMENT Ext.P5, order is under challenge in this writ petition at the instance of defendants in the suit – O.S.No.230 of 2004. That is a suit filed by the respondent for recovery of possession of schedule property. Petitioners disputed valuation and court fee paid as incorrect. Later respondents sought amendment of plaint on market value stated therein and sought permission to sue as indigent person obviously on the premise that he is unable to pay the additional court fee payable consequent to the amendment. Learned Sub Judge allowed the application vide Ext.P5, order. That order is under challenge. Though various contentions are raised in the writ petition, the challenge now is confined to the manner in which application for permission to sue as indigent person (I.A.No.4939 of 2008) was presented before the Chief Ministerial Officer. Learned counsel contends that it was not presented as required under Order XXXIII Rule 2 of the Code of Civil Procedure (for short, “the Code”) in that the application was presented by the counsel for respondent. It is also the contention of learned counsel that respondent is not an indigent person as he is possessed of sufficient means to pay the additional court fee W.P.C.No.10728 of 2010 : 2 : payable. Learned counsel for respondent after getting instruction has stated that the application was presented by counsel on behalf of respondent. 2. There can be no dispute that the application for permission to sue as indigent person can be preferred even during pendancy of the suit notwithstanding that the party had paid the initial court fee payable. Under Order XXXIII Rule 2 of the Code, “every such application shall be presented to the court by the applicant in person, unless he is exempted from appearing in court, in which case the application must be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person”. Rule 1-A states that “on every such application being presented to the Chief Ministerial Officer of the court, at the first instance, unless the court otherwise directs, shall conduct an inquiry into the matter”. Reading Rules 1-A and 3 of Order XXXIII it is clear that application has to be presented by the party concerned in person unless he is exempted from doing so and is permitted to file application through authorised agent. There is no case that any such exemption was granted to the respondent. Hence I.A.No.4939 of 2009 ought to have been presented by the respondent personally W.P.C.No.10728 of 2010 : 3 : to the Chief Ministerial Officer as provided under Rule 3 of Order XXXIII of the Code so that Rule 1-A could have been complied. Since that has not been done Ext.P5, order cannot be sustained. But since the application is already presented and numbered it is sufficient that respondent appears before the Chief Ministerial Officer of the court for enquiry. 3. So far as the contention of petitioner that respondent is possessed of sufficient means is concerned, that is a matter which petitioner could urge before the court below at the appropriate stage as provided under law. Resultantly this writ petition is allowed and Ext.P5, order is set aside. Respondent is directed to appear before the Chief Ministerial Officer of the court of learned Additional Sub Judge-I, Thiruvananthapuram on the day and time notified by the court for that purpose and thereon the Chief Ministerial Officer shall conduct an inquiry as provided under Rule 1-A of Order XXXIII of the Code. Thereafter learned Additional Sub Judge-I shall follow the procedure prescribed for deciding the application for permission to sue as indigent person. If the case is included for trial in the list learned Additional Sub Judge-I shall adjourn the case until formalities on the application are complied with. (THOMAS P JOSEPH, JUDGE) Sbna/-