IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 WP(C).No. 32037 of 2007(L) --------------------------------------- (OS.288/2007 OF SUB COURT, KOZHIKODE) .................... PETITIONER: ------------------- T.K.GANGAN MENON, S/O.P.K.K.MENON, THERAMBATTIL HOUSE, KASMABA AMSOM DESOM, KOZHIKODE. BY ADVS. M/S. R.BINDU (SASTHAMANGALAM), PRASANTH M.P. RESPONDENT: ---------------------- GOPALAKRISHNAN ALIAS BABU, S/O.NARAYANAN NAMBIAR, RESIDING AT SURAG, EDAKKAD VILLAGE, AND DESOM, KANNUR DISTRICT. BY ADV. SMT.T.RESMI DAMODARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32037/2007-L: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ORDER PASSED BY THE SUBORDINATE JUDGE, KOZHIKODE IN I.O.P. NO. 13/2006 DTD. 16/07/2007. EXT.P.2: COPY OF THE PROCEEDINGS IN I.O.P. NO. 13/2006 BEFORE THE SUBORDINATE JUDGE'S COURT, KOZHIKODE. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N.KRISHNAN, J ===================== W.P.(C) No.32037 OF 2007 ===================== Dated this the 31st day of January 2008 JUDGMENT This writ petition is preferred against the order of the Sub Court, Kozhikode in I.O.P.No.13 of 2006 whereby it had permitted the respondent herein to sue as an indigent person. The court below on a consideration of the materials available held that the respondent herein has succeeded in proving that he is not having any means. I had perused the order and heard the arguments advanced by both sides. The main grievance of the counsel for the petitioner is that the court had passed the order without giving him an opportunity to adduce rebuttal evidence. A perusal of the order would reveal that the respondents did not adduce any evidence. They have also filed a counter stating that the respondent herein is having sufficient means, but they had not produced any document to establish the same. Under the provisions of Order XXXIII C.P.C., notice was given to the learned Government Pleader and a report has been filed as Ext.X1 by the Tahsildar, Kannur. It is revealed that there is no exclusive landed property belonging to the respondent herein and therefore the court accepted Ext.X1 as well as WP(C)32037/2007 -:2:- the evidence of PW1 and arrived at a finding. Even in the counter statement filed by the respondents they had not pin pointed any materials to prove the means and further no direct suggestions had been put to the respondent while he was examined as PW1 regarding the means. The scope of enquiry of an indigent person is only regarding the means and when the respondents in the I.O.P challenged the means of the petitioner therein it is incumbent upon them to plead and prove if they want to rebut the evidence of the other side. I am conscious of the fact that the primary liability is on the indigent person himself to prove it, but when it is proved, the rebuttal is on the other side which requires some evidence. At this length of time there is no point in giving opportunities after opportunities to the respondents to substantiate their case as it is not specifically averred in the counter statement. Therefore, I do not want to interfere with the decision rendered by the court below for the reason that it does not suffer from any serious infirmity or illegality. Therefore writ petition lacks merit and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/-