IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 FAO.No. 243 of 2008() --------------------- AGAINST THE ORDER DATED 27/09/2008 IN IA 307/05 IN OS.417/2003 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/PETITIONER IN I.A.307/2005/PLAINTIFF ------------------------------------------------------------------ K.VIJAYAKUMAR,S/O.P.K.VASUDEVAN NAIR, JAYA VIHAR, COLLECTORATE.P.O, KOTTAYAM, PRESENTLY RESIDING AT KARUKULAM BUILDINGS, T.D.ROAD, ERNAKULAM. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S): RESPONDENT IN I.A.307/2005/DEFENDANTS ---------------------------------------------------- 1. K.S.SAROJINI AMMA, D/O.LATE MEENAKSHI AMMA, KALATHIL KAROTTU HOUSE, "SREE LAKSHMI", VAZHOOR EAST.P.O, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. 2. M.SOBHANA KUMARI, W/O.RADHAKRISHNA KURUP D/O.K.S.SAROJINI AMMA, KALATHIL KAROTTU HOUSE, "SREE LAKSHMI", VAZHOOR EAST.P.O, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. ADV. SRI.T.K.RADHAKRISHNAN FOR R1 & 2 SMT.K.L.SREEDEVI FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No. 243 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of September, 2009 JUDGMENT Joseph, J. The appellant challenges the order in the application filed under Order XXXIII Rule 1 C.P.C. seeking permission to prosecute the suit as a pauper. The application stands rejected. 2. The suit was valued at Rs. 10 lakhs. The Court Fee payable is Rs.1,14,.400/- The appellant paid 1/10th Court fee at Rs.11,440/- According to the appellant, by the time the appellant was to pay the balance court fee, his business had fallen on bad times and he could not pay the balance court fee. 3. The appellant was examined as PW1. Ext.B1 is the affidavit filed by the appellant dt. 10.7.2008. The F.A.O.No. 243 of 2008 2 learned Sub Judge has, inter alia, stated in the order that the appellant has not specified the house number or address of his rented house, which he has at Ernakulam. He has not produced the rent deed to show that he is residing in a rented building for a monthly rent of Rs.1,000/- He has also not produced any records to show that he has wound up his business and is not doing any business after 1993. 4. The court takes note of the admission of the appellant that a suit filed by him for Rs.30,000/- stands decreed and that he filed execution petition, which is pending. The appellant deposed that as per Partition Deed No. 2189/1963 of the Sub Registrar Office, Pampadi he got 9 Acres and 82½ cents of property comprised in Sy.Nos. 598, 599 and 600, which property he had disposed of. The fact that the appellant has not produced any records to show that he had disposed of the property was also noted by the learned Sub Judge. The F.A.O.No. 243 of 2008 3 appellant's sister was having 10 acres of property. The appellant entered into an agreement for purchase of that property. He paid Rs. 15 lakhs towards the sale consideration. This amount he got by sale of his property in the year 2004. 5. In the suit filed by the appellant against his father and sister, arising out of the agreement to sell the property, Ext.B1 affidavit was filed by him. Therein, there is a reference to the amount paid by him i.e. a total sum of Rs.15 lakhs. The appellant has to pay the balance amount of Rs.5 lakhs on or before 31.12.2008. Further, it is noted that the appellant, it was after filing the application for exempting him from remitting the balance court fee, he has paid a sum of Rs.2 lakhs to the Power of Attorney holder of his sister, who is none other than his father. On this basis it is found that the appellant has sufficient means to pay the court fee. F.A.O.No. 243 of 2008 4 6. The fact that the appellant did not schedule the decree obtained by him has also been taken note of. The court found that this warrants rejection of his prayer under Order 33 Rule 5 (a) C.P.C. 7. Lastly it is stated that the appellant has not filed the affidavit in the proper form as specified in Rules 43 and 44 of the Civil Rules of Practice. The appellant has not mentioned the house number etc. in the affidavit. It is found that the application is without bonafides. 8. We heard the learned counsel for the appellant, Shri.M.S. Narayanan and also the learned counsel for the respondents. 9. The learned counsel for the appellant would point out that as far as the payment of Rs. 2 lakhs is concerned, the matter has been explained in the course of re-examination. He points out that in re-examination it has been deposed that the appellant obtained Rs. 2 lakhs from his father-in-law with a F.A.O.No. 243 of 2008 5 direction to utilise the same only for payment of the sale consideration. As far as the sale of 9 Acres 82 ½ cents of property is concerned, he obtained Rs.13 Lakhs and that has been paid towards the sale consideration under the agreement he entered into with his sister. Referring on the decision reported in Andrews v. Hassan (2006 (3) KLT 807) he pointed out that the amount of Rs. 2 lakhs cannot be treated as property, which he has acquired. 10. The learned counsel for the appellant also pointed out that the reasoning of the court below that the application is rejected for the reason that the decree obtained by the appellant is not scheduled may not hold good. According to him, in the first place, the amount in the decree is Rs.30,000/- Secondly he submits that there are many imponderables in the matter of actual realisation of the decree amount. The counsel also relied on the decision in Prabhakaran Nair v. Neelakantan Pillai (1987 (2) KLT 376). F.A.O.No. 243 of 2008 6 11. The learned counsel for the respondents supported the order. She would submit that there is no merit in the application. She would point out that the decision in Andrews (supra) is a direct answer to the contentions of the appellant. The counsel submits that the appellant has got other properties. She also submits that the suit is barred by limitation as the institution of the suit is in the year 2003. 12. We are of the view that there is no merit in this appeal. The suit was instituted in the year 2003. The appellant paid 1/10 court fee at the time of institution of the suit. Admittedly the appellant had 9 Acres 82½ cents of property. Even according to the appellant he has received more than Rs.13 lakhs in the year 2004 from the sale of the said property. He was certainly aware that under the provisions his liability to pay court fee is only postponed till the settlement of the issues. At the time when he has instituted the suit he had no F.A.O.No. 243 of 2008 7 intention to avail of the provisions of Order 33. When he obtained nearly Rs.13 lakhs, even according to his own averments, he was aware of the duty to pay court fee. The mere fact that the suit is prolonged for whatever reason, it may not exonerate the appellant from his statutory obligation to pay the balance court fee. 13. In this case we cannot overlook the conduct of the appellant in disposing of 9 Acres and 82 ½ cents of property obtaining more than Rs.13 lakhs and not remitting the balance court fee of Rs.1,02,960/- Secondly we cannot overlook the fact that admittedly the appellant obtained Rs. 2 lakhs and made payment of the same towards the agreement to sell, which he alleges he had entered into with his sister. The time of payment of the said amount is admittedly after the filing of the applications. F.A.O.No. 243 of 2008 8 14. Order XXXIII Rule 1 C.P.C. reads as follows: “1. Suits may be instituted by indigent person:- Subject to the following provisions, any suit may be instituted by an indigent person. Explanation I:- A person is an indigent person, - (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject matter of the suit. Explanation II:- Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application shall be taken into account in considering the question whether or not the applicant is an indigent person. F.A.O.No. 243 of 2008 9 Explanation III:- Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.” No doubt, the appellant would point out that he obtained the amount from his father-in-law with a specific direction that it should be utilised only for making payment towards the balance sale consideration. The Rule says that the property which is acquired has to be reckoned for the purpose of deciding the issue. 15. We cannot take the view that the amount of Rs. 2 lakhs which he has made use for paying towards the sale consideration is not property. We are of the view that the word 'property' used would embrace the amount of Rs. 2 lakhs which he has made use of for making payment towards the sale consideration. That portion of the amount he could have used for payment towards the balance court fee. Certainly as F.A.O.No. 243 of 2008 10 between his obligation to pay the court fee and the alleged obligation he has under the contract, the appellant had the duty to pay the court fee. We cannot countenance the attempt of the appellant to avoid payment of the court fee with reference to the alleged instruction by his father-in-law to make use of the amount only for the purpose of paying the balance sale consideration. Therefore, even if we exclude the fact that the appellant has not scheduled the decree of Rs.30,000/- we would think that the order is only to be supported. 16. As far as the question of limitation is concerned, in view of the fact that we are not interfering with the order as aforesaid, we deem it not necessary to pronounce on the question of limitation. That is a matter to be decided with reference to evidence. 17. We see no merit in this appeal, which is dismissed. The parties are directed to suffer their respective cost in this F.A.O.No. 243 of 2008 11 appeal. Having regard to the facts and circumstances, we grant three months time to the appellant to remit the balance court fee. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm