IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 FAO.No. 16 of 2009() -------------------- AGAINST THE ORDER IN IA 2442/05 IN OS.1041/2004 of PRL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER/IST DEFENDANT: ------------------------------------------------------------- REMANI, D/O.KURUNGATTU SUBHADRAMMA, CHITTILAPPILLY VILLAGE, DESOM, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANT: ------------------------------------------------------------------------------------ 1. SREEDHARAN, S/O.KURUNGATTU SUBHADRAMMA, KUMBLANGADU DESOM, WADAKKANCHERY VILLAGE, TALAPPILLY TALUK. 2. USHA DEVI, W/O.M.T.NARAYANANKUTTY, RESIDING AT "NISHA NIVAS", PURANATTUKARA DESOM, PUZHAKKAL VILLAGE, THRISSUR TALUK. ADV. SRI.G.UNNIKRISHNON FOR R1 SRI.K.SANEESH KUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON 24/06/2009 DELIVERED FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 16 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009. JUDGMENT Bhavadasan, J, This appeal is directed against the order in I.A. 2442 of 2005 in O.S. 1041 of 2004, by which the petitioner before the court below sought to maintain her counter claim as informa pauperis. Parties are hereinafter referred to as they were available before the court below. 2. The first respondent instituted a suit against two defendants seeking recovery of possession based on title. The property involved was about 11 and odd cents comprised in Sy.No.307/3 of Chittilappilly Village. The petitioner, who was the first defendant in the suit resisted the suit and also filed a counter claim. As per law, she had to pay a sum of Rs.68,400/- as court fee on the counter claim. Since she was unable to pay the said amount, she instituted I.A. 2442 of 2005 seeking permission to prosecute the counter claim as an indigent person. FAO. 16/2009. 2 3. The petition was resisted by the respondents. They pointed out that she had sufficient means to pay the court fee, and that the petitioner maintains an account in a Bank. 4. The court below found that the petitioner did maintain an account in the Bank and that was not disclosed in the schedule appended to the petition seeking permission to sue as informa pauperis. Petitioner pointed out that even though she had an account in the Bank, the money did not belong to her and therefore she did not disclose the same. The court below relying on Order 33 Rule 2 and 5 dismissed the petition. The said order is assailed in this appeal. 5. Learned counsel appearing for the appellant pointed out that the court below was not justified in dismissing the petition to sue as informa pauperis. It was pointed out that her husband was employed outside and he was sending money to her for the maintenance of the family. The money did not belong to her. For the said reason that the account in the Bank was not shown in the schedule. 6. Learned counsel appearing for the respondents on the other hand pointed out that whatever may be the case, the petitioner FAO. 16/2009. 3 was bound to disclose the SB Account in the schedule to her petition and since she had not done so, no interference is called for with the order of the court below. 7. The claim of the appellant is that on a counter claim she has to pay a sum of Rs.68,400/- as court fee. She would say that she does not possess any means to pay the court fee. It is pointed out that she did have an SB Account with the Bank. But her explanation is that her husband was employed outside and he was sending money for the maintenance of the family. The definite case of the appellant was that the money did not belong to her and therefore she could not utilise the amount sent by her husband for the purpose of paying court fee. 8. Going by Order 33 Rule 1 of Code of Civil Procedure, a person is entitled to seek permission to sue as informa pauperis, if he or she is not possessed of sufficient means which enables him or her to pay the court fee. 9. Order 33 Rule 2 deals with the contents of the petition, and Order 33 Rule 5 deals with grounds on which the application can be rejected. One of the grounds is that when the petition is not framed FAO. 16/2009. 4 as contemplated under Order 33 Rule 2 or 3 of CPC, it can be rejected. Therefore, strictly speaking if the petitioner before the court below does not disclose all her assets, the court has no option but to dismiss the application. 10. However, in the case on hand, the definite stand of the appellant is that she has no means of her own to raise funds for paying court fee and she has an SB account only for the purpose of getting money for the maintenance of the family. According to her the money does not belong to her at all. 11. The above stand seems to be reasonable. However, it needs to be noticed that it is the respondents in the petition, who has sought to oppose the petition. In fact except when a question of jurisdiction is considered, the respondent has no say in the matter. It is an issue between the State and the applicant. Whatever that be, the explanation offered by the appellant appears to be acceptable. It also needs to be noticed that the amount of court fee payable comes to Rs.68,400/-. The claim of the appellant that she bonafide believed that since the amount did not belong to her, she was under the impression FAO. 16/2009. 5 that the account need not be shown in the schedule seems to be a reasonable explanation, even though it may not be strictly acceptable in law. Considering the above aspects, it is felt that the court below was not justified in dismissing the application. Therefore this appeal is allowed, the impugned order is set aside and the petitioner is allowed to file the counter claim as informa pauperis subject to the condition that the State Government is given liberty to move the court below under Order 33 Rule 9 of the Code. P.R. Raman, Judge P. Bhavadasan, Judge sb.