IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 FAO.No. 7 of 2006() ------------------- AGAINST THE ORDER DATED 02/12/2005 IN IA 623/05 IN OS.133/2004 of SUB COURT,KATTAPPANA .................... APPELLANT ------------- MR.GANESHAN, AGED 49 YEARS, S/O. THANKAMONI, SWAMIVILA HOUSE, MEKKAMANDAPAM P.O., VILAVOOR VILLAGE, VILAVANCODE,KANYAKUMARI DISTRICT NOW RESIDING AT HOUSE NO.P.VII/239, CHEKKUPALLOM, MANGAVALA KARA, CHEKKUPALLAM VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT(S): --------------- K.T.THOMAS, AGED 55 YEARS, THEKKEDAPLAKEL HOUSE, KUMALI KARA, KUMALI VILLAGE. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O.No.7 of 2006 ------------------------------- Dated this the 10th June, 2009 J U D G M E N T Bhavadasan, J. Plaintiff whose application, to sue as an indigent person, I.A.No.623/2005 in O.S.No. 133 of 2004, on the file of Sub Court, Kattappana, was dismissed by the court below, is the appellant herein. 2. The suit was one for recovery of money. According to the plaintiff, money was due to him from the defendant for having undertaken a construction for the defendant. The case of the plaintiff is that apart from the 4.27 lakhs paid to him on several occasions, some more amount was due from the defendant. He laid the suit for the recovery of same. On filing of the suit, he paid 1/10th of the court fee. He has then filed I.A.No.623 of 2005 pointing out that since the construction industry is dull, he has no work, he has no FAO.No.7 of 2006 2 sufficient means to pay the balance court fee, and hence he may be allowed to continue the suit as an indigent person. The said petition was resisted by the respondent who pointed out that petitioner has received a sum of Rs.22,075/=, and if he has no money, he has to explain as to what had happened to the said amount. It is also stated that petitioner has sufficient means to pay the court fee. 3. For the purpose of I.A.No.623/2005, the petitioner/appellant examined himself as PW.1. The court below found that the petitioner had received Rs.4.27 lakhs from the respondent towards the construction of the work undertaken by him. Even though the petitioner pointed out that the said amount was paid to the labourers, the court below did not accept the said contention, for want of evidence. Accordingly the said application was dismissed. 4. It needs to be noticed that all that the respondent had pointed out in his objection was that appellant had received Rs.22,075/= and there was no explanation as to FAO.No.7 of 2006 3 what had happened to that amount. It may be true that appellant had failed to adduce evidence to show that what had happened to Rs.4.27 lakhs received by him. However, there is nothing to indicate that the petitioner was in possession of the said amount at the time of filing of the petition. At any rate, we feel that the appellant should be given an opportunity to substantiate his claim in the petition. 5. In the result, the appeal is allowed. The impugned order is set aside. The matter is remanded to trial court for fresh consideration, in accordance with law and in the light of what has been stated above. The parties shall appear before the court below on 13.7.2009. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.