IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 FAO.No. 165 of 2007() --------------------- OP.1/2005 of PRL.S.C.,THALASSERY .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- C.C.RATHEESAN, S/O KUMARAN, VELIYAVALAPPIL HOUSE, ADOOR P.O., KADACHIRA, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------- 1. THE MANAGER, CENTRAL BANK OF INDIA, PERALASSERY BRANCH, MUNDALLOOR, KANNUR DISTRICT. 2. V.KRISHNAN, EARLIER MANAGER, CENTRAL BANK OF INDIA, PERALASSERY BRANCH, C/O REGIONAL OFFICE, METRO TOWER, ERNAKULAM, COCHIN. 3. CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. ADV. SRI.P.K.SURESH KUMAR FOR R1 SMT.PRIYA VIJAYAN FOR R1 GOVERNMENT PLEADER SRI.BENNY GERVASIS FOR R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ------------------------------------------------- F.A.O.No.165 of 2007 -------------------------------------------------- Dated this the 16th day of January, 2009 JUDGMENT Kurian Joseph,J. This is an appeal filed against the order in O.P.No.1/2005 on the file of the Sub Court, Thalassery. Petitioner is the appellant. The original petition was filed praying for permission to file the suit as indigent person. The petition was dismissed holding that the petitioner had suppressed his assets. Petitioner had been running a flour mill by availing a loan from the first respondent Bank. He had also installed various machineries in the flour mills. He was regularly paying rent for the tenanted premises where the mill was functioning, apart from other utility charges for electricity etc. The learned Sub Judge, having noted that the petitioner had not disclosed the particulars referred to above, regarding the machinery, rent, electricity charges etc. dismissed the petition stating that the petitioner had not approached the court with clean hands. In the process it was also held that in case the petitioner does not have property worth F.A.O.No.165 of 2007 -:2:- Rs.1,000/- other than the property exempt from attachment in execution of the decree and the subject matter of the suit, then only the petitioner is entitled to file the suit as an indigent person. 2. Learned counsel appearing for the first respondent submits that though the Revenue had submitted a report to the effect that the petitioner/appellant does not possess sufficient means to pay the court fee, from the conduct of the petitioner/appellant it is clear that the suit is only intended to harass the Bank. As a matter of fact the Bank was being driven from pillar to post before various forums for having extended a loan to the tune of Rs.50,000/-. It is submitted that the petitioner/appellant having suppressed information which he was statutorily bound to disclose, he is not entitled to file the suit as an indigent person. 3. Order XXXIII Rule 1 to the extent relevant 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. F.A.O.No.165 of 2007 -:3:- 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 on the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. 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.” Explanation I contains two parts. Explanation I(a) pertains to a situation where a person is not in a position to pay the prescribed court fee. Explanation I(b) provides for a situation where no court fee is prescribed for a litigation. In the instant case the suit is valued at Rs.10 lakhs and the prescribed court fee is Rs.98,400/-. After the amendment of the Code of Civil Procedure, at the time of filing of the suit, only 1/10th of court fee F.A.O.No.165 of 2007 -:4:- need be paid. Apparently the learned Sub Judge has considered the case of the petitioner/appellant in terms of Explanation I(b) dealing with a situation where no court fee is prescribed. The factual situation is that the case of the petitioner has to be considered in the light of Explanation I(a). 4. According to the appellant, the machineries were not disclosed in the schedule of immovables for the reason that they were hypothecated to the Bank. Be that as it may, as we have already observed above, the learned Sub Judge has erred in the basic approach to the issue. Therefore, the matter will have to be considered afresh in any case. The trial court will also have to consider whether an opportunity should have been given to the petitioner to disclose his assets. Still further there should also have been an enquiry as to whether the appellant is in a position to pay 1/10th of the court fee and continue the suit, if he does not possess sufficient means as an indigent person for the rest of the court fee. Therefore, we set aside the order under appeal dated 28-3-2007 in O.P.No.1/2005 on the file of the Sub Court, Thalassery and remit the matter to the Sub Court for fresh F.A.O.No.165 of 2007 -:5:- consideration in accordance with law. The parties will appear before the court below on 12-2-2009. The appellant is permitted to file an additional affidavit within one month from today. Thereafter the petition will be disposed of expeditiously, at any rate, within another six months. The appeal is allowed as above. (KURIAN JOSEPH, JUDGE) (P.R.RAMACHANDRA MENON JUDGE) ahg. KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. --------------------------- F.A.O.No.165 of 2007 ---------------------------- JUDGMENT 16th January, 2009