IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 FAO.No. 188 of 2003() --------------------- OPIND.38/2002 of SUB COURT,KATTAPPANA .................... APPELLANTS/PETITIONERS --------------------------------------- 1. BINDU, W/O. AJITH, AGED 26 YEARS, VINOD BHAVAN @ ASWINIM, SWARNAVILASAM KARA, AYYAPPANKOVIL VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 2. ASWIN, AGED 41/2 YEARS, S/O.AJITH, REP.BY HIS MOTHER AND GUARDIAN BINDU, SWARNAVILASAM KARA, AYYAPPANKOVIL VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 3. ARYA, AGED 1 YEAR, D/O. AJITH, REP.BY HER MOTHER AND GUARDIAN BINDU SWARNAVILASAM KARA, AYYAPPANKOVIL VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.T.V.GEORGE SMT.G.ROOPARANI SMT.LINDA GEORGE SRI.SAM THOMAS.K RESPONDENT(S): RESPONDENTS -------------------------- 1. AJITH, AGED 36 YEARS, S/O. BALACHANDRAN NAIR, VINOD BHAVAN @ ASWINIM HOUSE, SWARNAVILAS KARA, AYYAPPANKOVIL VILLAGE, UDUMPANCHOLA TALUK, IDUKKI. 2. BALACHANDRAN NAIR, AGED 6 YEARS, S/O. NEELAKANDAN NAIR, VINOD BHAVAN, NARIYAMPARA KARA, AYYAPPANKOVIL VILLAGE, UDUMPANCHOLA TALUK, IDUKKI. 3. SUMATHIAMMA, AGED 60 YEARS, W/O. BALACHANDRAN NAIR, VINOD BHAVAN @ ASWINIM HOUSE, NARIYAMPARA KARA, AYYAPPANKOVIL VILLAGE, UDUMPANCHOLA TALUK, IDUKKI. ADV. SRI.PHILIP T.VARGHESE FOR R2, R3 SRI.THOMAS T.VARGHESE FOR R2, R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 188 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25t day of May, 2009. JUDGMENT Bhavadasan, J, Plaintiffs - petitioners before the court below had filed an application for instituting the suit as indigent persons and that was dismissed by the court below. 2. First appellant is the wife of the first respondent and appellants 2 and 3 are their children. The suit was instituted for recovery of gold ornaments in the possession of the first respondent and for other reliefs. Since the plaintiffs before the court below claimed that they did not have adequate means to pay the court fee, they filed O.P.(Indigent) 38 of 2002. The respondents opposed the application. The court below, after considering the various materials before it found that the plaintiffs before the court below had failed to establish that they had no means to pay the court fee and therefore dismissed the application. 3. The sole ground based on which the application was dismissed was Ext.X1 document said to have been produced by the F.A.O.188/2003. 2 respondents before the court below. The court below came to the conclusion that the petitioners before the court below had means to pay the court fee and that fact was suppressed. 4. It is interesting to note that Ext.X1 is only an application for marriage relating to the first plaintiff and the first respondent. No documents whatsoever are produced to show that the plaintiffs- petitioners were infact in possession of movable or immovable property, from which they could raise funds to pay the court fee. It might be noticed that when the first petitioner was examined as P.W.1, she had categorically denied that she was in possession of any property. In the light of that fact, the burden was on the respondents to give the details of the properties said to have been owned by the petitioners and to establish that they had means to pay the court fee. One must also remember that a copy of the petition would have been sent to the District Collector for enquiry. There is nothing to show that the Tahsildar concerned has filed any statement to show that petitioners were in possession of the properties so as to enable them to pay court fee. F.A.O.188/2003. 3 In the light of the above facts, it is difficult to sustain the order of the court below, and accordingly the appeal is allowed and the impugned order is set aside. The petitioners before the court below are permitted to proceed with the suit as indigent parties. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.