IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 FAO.No. 250 of 2006() OPI.3/2004 of SUB COURT, QUILANDY .................... APPELLANTS/PETITIONERS IN OP 1. PARAKANDY HARSHA, AGED 18 YEARS, D/O.GANGADHARAN, RESIDING AT PANDARAKANDY MEETHAL, MOODADI AMSOM, VELLARKKAD DESOM, KOYILANDI TALUK. 2. PARAKANDY GANGADHARAN, S/O.KESAVAN, RESIDING AT PANDARAKANDY MEETHAL, MOODADI AMSOM, VELLARKKAD DESOM, KOYILANDI TALUK. BY ADV. SRI.V.V.SURENDRAN, SRI.P.A.HARISH RESPONDENT(S): 1. DR.RAJAN, AGE AND FATHER'S NAME NOT KNOWN, CO-OPERATIVE HOSPITAL, KOYILANDI, KOZHIKODE DISTRICT. 2. DR.JAYASREE SREENIVASAN, AGE AND FATHER'S NAME NOT KNOWN, CO-OPERATIVE HOSPITAL, KOYILANDI, KOZHIKODE DISTRICT. 3. DR.RAVEENDRAN, AGE AND FATHER'S NAME NOT KNOWN, CO-OPERATIVE HOSPITAL, KOYILANDI, KOZHIKODE DISTRICT. 4. CO-OPERATIVE HOSPITAL, REPRESENTED BY ITS PRESIDENT, KOYILANDI, KOZHIKODE. 5. THE DISTRICT COLLECTOR, KOZHIKODE. 6. THE SECRETARY, CO-OPERATIVE HOSPITAL, KOYILANDI, KOZHIKODE. ADV. SRI.R.PARTHASARATHY FOR R1TO,4,6 SRI.A.RADHAKRISHNAN NAIR FOR R2,3,4,6 SRI.C.JAYACHANDRAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.250 OF 2006 -------------------------------------------------------- Dated 22nd July 2009 Judgment RAMAN, J. The petitioners, alleging negligence of duty on the part of respondents 1 to 4 and 6, instituted the suit for compensation. The 4th respondent is a hospital run on the co-operative sector as a co-operative society. The petitioners sought relief as against all the above respondents. They filed an application under Order 33 Rule 5 CPC to file the suit as informa pauperis. The court below rejected the application under Order 33 Rule 5 on two grounds. One of the grounds is that the schedule of the movable/immovable properties belonging to the applicants, the value of which is not estimated, has not been annexed as contemplated under Order XXXIII Rule 2 CPC, which is a ground available under Order XXXIII Rule 5(a). The second ground on which the application was rejected is that the allegation made by the plaintiff in the application would show that the suit would be barred in law for the time being in force FAO 250/06 2 (Rule 5(f). In this connection, it was held that S.69 of the Co- operative Societies Act clearly bars a suit as against a co- operative society and therefore, the present suit is not maintainable. 2. The appellant contends that as regards the rejection of the application on the ground of non-compliance of Rule 2 is only a defect which can be cured. It is pointed out that a bona fide mistake is rectifiable even subsequently. The appellant places reliance on the Division Bench decision of this court in Mathew v. State of Kerala (1996(2) KLT 363). That is a case where an omission to include an item bona fide was held to be not fatal and such defect could be cured at a later stage. It was held that if, before the final disposal of the application, if the applicant takes steps to include the said item also in the schedule to the application and satisfies the court that the original omission was bona fide, it may be possible to take the view that at the time the application is taken up for disposal, the same had been framed in the manner prescribed by Order XXXIII Rule 2. As already pointed out, it is only a case of FAO 250/06 3 inadvertence. But, in terms of Order XXXIII Rule 5(a), the application is liable to rejected if the properties movable or immovable are not disclosed in the schedule to the application. But, as noticed in the above decision, such omission could be supplied, if it is a bona fide omission, before the matter is disposed of. That is why it is stated, if before the final disposal of the application, the applicant takes steps to include that item in the schedule and satisfies the court that the original omission was only bona fide, it may be possible to take the view that at the time the application is taken up for disposal, the same had been framed in the prescribed manner as contemplated under the Order XXXIII Rule 2. As regards the present case is concerned, the applicant did not show in the application the estimated value of the properties disclosed by him. There is no question of any omission because prima facie, it is for him to show that the estimated value of the property in his ownership or possession is insufficient for payment of the court fee. In that view of the matter, probably, it cannot be said that the court below was wrong in rejecting the application under Order XXXIII FAO 250/06 4 Rule 5. However, we may add to say that if it is a mere rejection of an application under Order XXXIII Rule 5, it will not visit with any consequence because it is not a refusal to permit to sue as an indigent person and the bar under Order VI Rule 15(2) may not come. Therefore, even if a strict interpretation of Order XXXIII Rule 5 is given, it may be open for the indigent person to rectify the application and represent the same or file a separate application provided it is not barred by the law of limitation. We may only say that Order VI Rule 15 will not come into play. 3. The second objection is regarding the prohibition contained in S.69 of the Co-operative Societies Act. The argument of the appellants is that the words 'touching the business of the society' as per S.69(1)(f) may not apply since this is a case of tortious liability. Admittedly, when it is a co- operative society and when the first appellant was treated in the hospital, the nature of the business carried on by the society is medical care. The word 'business' will have to be understood, having due regard to the objects of the society in question. It may be true that a suit might be maintainable as against others, FAO 250/06 5 but it is for the plaintiff, who is the master of the suit to decide as to whether he should claim relief as against the society also. When he has chosen to claim relief against the society also, it is entitled to say that the suit is barred under S.69(1)(f) of the Co- operative Societies Act. If that be so, the indigent application filed in the present case is hit by Rule 69(5)(f) as well and thus liable to be dismissed under the said rule. 4. It is contended by the learned counsel for the appellants that since it is only a defect, an opportunity to cure the defect ought to have been given. He places reliance on the decision in Poulochan v. Noble Enterprises (1987(2) KLT SN 41 Case No.58) in support of the said contention. We do not find any merit in this contention. In so far as Order XXXIII Rule 5 specifically says that the application shall be rejected, a further opportunity need not be given. When the statute itself says that the application shall be rejected on the grounds specified thereunder, if any of the grounds are satisfied, the court can certainly dismiss the application on one or the other grounds. We have already dealt with this aspect in the foregoing para and FAO 250/06 6 also stated the consequences arising therefrom. Only that has been done in this case. Therefore, we are unable to appreciate this contention on the plain language of the section. However, since the matter was pending in appeal before this court, we grant two months' time for payment of the court fee. The appeal is dismissed with the above observations. Upon payment of the court fee, the suit, if not yet numbered, will be numbered. There will be no order as to costs. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 250/06 7