IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 FAO.No. 41 of 2006() ------------------------------ OP.198/2004 of II ADDL. DISTRICT COURT, TRIVANDRUM .................... APPELLANT/ PETITIONER --------------------- JANARDANAN, SON OF SIVARAMAN, AGED 61 YEARS, TC 27/1294 (2), RISHIMANGALAM, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. BY ADVS.MR.V.SURESH MR.G.SUDHEER RESPONDENT(S): COUNTER-PETITIONER --------------------------------- D.SIVAKUMAR @ SIVAN, SIVA BHAVAN, V.R.A. 23, VADAVOOR, ARASUMOODU, ANAYARA, PETTAH.P.O, THIRUVANANTHAPURAM. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... F.A.O.NO.41 OF 2006 ............................................. Dated this the 7th day of September, 2009 J U D G M E N T This is an appeal preferred against the order in O.P. (Indigent) No.198/2004. The court below found that the petitioner therein can pay the court fee and therefore rejected his prayer to sue as an indigent person as contemplated under Order XXXIII of the C.P.C. 2. Perused the order of the court below. The court below negatived the prayer of the appellant on the ground that he is the owner of Priya Timbers and that he has got three children who are well employed. Further that he owns a three storied building. It is also stated that there is 11.5 cents of property in Pallichal village and 48 cents of property in Vanchinad. So, taking into consideration all these aspects, the prayer had been disallowed. 3. I had perused the statement of facts. It has to be stated that employment of the children is not a ground so far as the appellant is concerned to negative the prayer for suing as an indigent person since he has no control over : 2 : F.A.O.NO.41 OF 2006 the same. So far as 11.5 cents at Pallichal is concerned, it is submitted that it is under order of attachment by the court and with respect to 48 cents, the competent court of civil jurisdiction has found that the plaintiff has got no title to the property. So far as his business is concerned, it is averred that it has become defunct and the entire business premises are under attachment of the bank on liability. Thus, it has to be understood that in order to direct a person to pay court fee, he must have the means to pay the same and that the means should be understood as one which is capable of raising the funds for the purpose of the court fee. It is also to be borne in mind that permission to sue as a indigent person is a temporary measure and everything ultimately depends upon the result of the suit. So from the materials available, it has to be held that there are no convincing materials to establish that the appellant is having sufficient means to pay the court fee or assets from which it could be raised to pay the court fee. Therefore, the court below erred in passing the order against him. : 3 : F.A.O.NO.41 OF 2006 4. In the result, the appeal is allowed. The order passed by the Second Additional District Judge, Trivandrum is set aside and the appellant is permitted to sue as an indigent person. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl