IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 CRP.No. 392 of 2009() --------------------- AGAINST THE ORDER DATED 03/06/2009 IN INDIGENT OP IN OP.3/2002 of PRL.SUB COURT, KOZHIKODE .................... REVISION PETITIONER(S): RESPONDENTS 1 TO 3: --------------------------------------------------------------------------- 1. FIRDOUSE, KUNNOTH, VILLIAPALLI AMSOM, THIRUMANA DESOM, VATAKARA. 2. RAMATH THAZHA KANIYIL NABEEZA, -DO- -DO- 3. P.M.ABDUL NAZIR, KUTTIADI AMSOM, THONDIPOYIL DESOM, VATAKARA TALUK. BY ADV. MR.G.UNNIKRISHNON RESPONDENT(S): PETITIONER AND RESPONDENTS 4 TO 10: ------------------------------------------------------------------------------------------ 1. M/S.MEENA PALACE PRIVATE LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, REPRESENTED BY ITS DIRECTOR MAYARANI KUMARI, P.G.COMPLEX, BANK ROAD, KOZHIKODE. 2. PARAMBATH MEENAKSHI, D/O.ANDIKUTTY, KARUMANGAT AMSOM, PERUVATHUR DESOM, KOYILANDY TALUK. 3. KERALA FINANCIAL CORPORATION, K.F.C.DISTRICT OFFICE, KALLAI ROAD, KASBA AMSOM, KOZHIKODE TALUK. Kss ..2/- ....2..... CRP.NO.392/2009 4. KOZHIKODE CORPORATION, REP.BY ITS SECRETARY, CORPORATION OFFICE, CALICUT BRANCH, KOZHIKODE TALUK. 5. CHERUVEETTIL MUSTHAFA AHAMED, S/O.KUNHAMMED KOYA HAJI, KASBA AMSOM, KOZHIKODE TALUK. 6. PADINHARE THOPPILAKATH PATHUMABI, D/O.MALIYEKKAL MAMUKOYA, NAGARAM AMSOM, KOZHIKODE TALUK. 7. KALLUTHAZHATH PUTHIYAPURAYIL SHUHAIB, BUSHARA NIVAS, CHEMANGAT NAGARAM AMSOM, KOZHIKODE TALUK. 8. P.V.SATHEESAN, S/O.KUNHOPERAVAN, PANTHALAYANI AMSOM, PANTHALAYANI POST, KOYILANDY TALUK. R1 BY ADV.MR.THOMAS ANTONY R3 BY ADV.MR.R.S.KALKURA,SC,KERALA FINANCIAL CORPN. R4 BY ADV. MR.K.D.BABU,SC,KOZHIKODE CORPORATION THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER IN I.A.NO.1850/2009 IN CRP NO.392/2009 DISMISSED 17/11/2009 SD/- S.S.SATHEESACHANDRAN,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.392 of 2009 - A --------------------------------- Dated this the 17th day of November, 2009 O R D E R Revision is directed against the order dated 3.6.2009 in indigent O.P.No.3 of 2002 passed by the learned Sub Judge, Kozhikode, granting permission to the first respondent/petitioner in that O.P. to sue for the reliefs claimed as an indigent person. Petitioner in the O.P. is stated to be a private limited company which, however, is disputed by the revision petitioners/contesting respondents in the O.P. It is the case of the petitioner in the O.P. that the company had availed financial assistance from the Kerala Financial Corporation mortgaging the plaint property for the purpose of putting up a multi storied structure in the property. Later on, to clear off the debts, according to the petitioner company, some arrangement was made with the Kerala Financial Corporation for collecting the rent from the building and adjusting it in the loan account. Without the knowledge of the company some documents had been fraudulently created over the plaint property and four sale deeds had been executed by a power of attorney of one of the directors of the company as if the property C.R.P.No.392 of 2009 - A 2 belonged to that director. Subsequent to the filing of the O.P., the petitioner company, it is submitted, had applied for amending the petition for seeking additional relief of recovery of possession. On the application filed by the petitioner company to sue as an indigent person, after being received and taken on file, the court issued notice to the respondents. The present revision petitioners on appearance resisted the O.P. contending that the company is not an indigent person. After taking evidence in the O.P. in which a director of the company was examined as PW1 and A1extract of a minutes of a board meeting of the company was exhibited along with X1 report filed by the learned Government Pleader, and hearing the counsel on both sides, the learned sub Judge passed the impugned order permitting the petitioner in the O.P. to sue as in indigent person. Propriety and correctness of that order is challenged in the revision. 2. I heard the counsel on both sides. 3. The learned counsel for the revision petitioners submitted that no primary evidence was let in by the petitioner company to show it is an indigent person. In case the company is an indigent person as claimed the balance sheets of the C.R.P.No.392 of 2009 - A 3 company filed from time to time could have been produced before the court and the absence of production of such materials prima facie indicate that the claim of indigency canvassed to sue for the reliefs of the company, according to the counsel, is unworthy of any merit. Inviting my attention to X1 report filed by the learned Government Pleader, learned counsel for the revision petitioners submitted that the report referred to nonpossession of immovable property by a director who represented the company in the proceedings and not of the company. X1 report does not lend any assistance to the court in examining the question whether the company is a indigent person or not, is the submission of the counsel. It is also submitted that the O.P. does not disclose any cause of action entitling the petitioner company to sue as in indigent person. On the other hand learned counsel for the first respondent company, petitioner in the O.P. inviting my attention to Rosamma v. Chacko (1999(1) KLT 182) contended where the petitioner has let in evidence to sustain the claim of indigency the burden shifted to the opposite party to show that it is not an indigent person as canvassed. When the O.P. is moved under Order C.R.P.No.392 of 2009 - A 4 XXXIII of the Code of Civil Procedure seeking permission to sue as an indigent person with no cause made out for rejecting such an application on any ground covered Rule 5 of that Order, and evidence tendered to prove indigency claimed, according to the learned counsel for the petitioner, the Division Bench has stated in unmistakable terms that the burden is on the opposite party to establish that the applicant is not an indigent person. When the law on the question has been so eloquently given expression to by this Court and the learned Sub Jude after taking evidence has come to the conclusion that the petitioner company has succeeded in proving its entitlement on the materials placed to sue as an indigent person, it is submitted by the learned counsel, that order is not liable to be interfered with in exercise of the revisional jurisdiction vested with this Court. 4. I find considerable force in the submissions made by the learned counsel for the first respondent/petitioner in the O.P. Whatever be the merit of the contentions canvassed by the revision petitioners resisting the reliefs claimed in the suit to be filed by the petitioner company that can be gone into only at the trial of the suit and not at the stage when the enquiry is C.R.P.No.392 of 2009 - A 5 proceeded on the question whether the petitioner in the O.P. is competent to seek permission to sue as in indigent person. In an enquiry on a petition seeking permission to sue an an indigent person the allegations raised in the petition must be given due consideration and in the absence of any ground as covered by Rule 5 of Order XXXIII of the Code of Civil Procedure to disentitle the person who has applied permission to sue as in indigent person, and evidence is let in to prove prima facie the indigency canvassed, the inevitable consequence has to follow, that is granting permission to the applicant to sue as an indigent person. I do not find any impropriety or illegality in the order passed by the learned Sub Judge permitting the first respondent company to sue as an indigent person. Revision lacks merits and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-