D. Sundaresan v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 20649 of 2008(G) -------------------------AGAINST THE ORDER IN IA 4162/2007 IN OS.389/2003 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: ------------ D.SUNDARESAN, CHITRA BHAVAN, K.K.NAGAR, KALLAYAM, PEROORKADA, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SMT.KVP.JAYALEKSHMY SRI.M.AJAY (IRUMPANAM) RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIATE, TRIVANDRUM. 2. THE SUPERINTENDING ENGINEER, PWD, NATIONAL HIGHWAY, SOUTH CIRCLE, PMG, TRIVANDRUM. 3. DISTRICT COLLECTOR, COLLECTORATE, TRIVANDRUM. BY GOVT. PLEADER SRI.SHYSON P.MANGUZHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR, J.** ------------------------------- W.P.(C) No.20649 of 2008 ------------------------------- Dated this the 9[th] July, 2008. ## **J U D G M E N T** Petitioner is the plaintiff in O.S.No.389 of 2003, on the file of Sub court, Thiruvananthapuram. The suit was instituted for realisation of Rs.1,12,54,929/=, being the damages sustained in executing the agreement as the Contractor. The total court fee payable is Rs.67,47,543/=. The suit was instituted by paying Rs.88,600/= being 1/10[th] of the court fee payable. Subsequently, petitioner filed Ext.P2 petition under Order XXXIII of Rule 1 of Code of Civil Procedure to exempt him from paying the balance court fee for the time being, contending that owing to the present financial constraints, he is not in a position to raise sufficient money for paying the balance court fee. That was filed as a petition supported by an affidavit. In the affidavit, petitioner disclosed his assets which are only the dresses and wearing apparels. Under Ext.P4 order, learned Sub Judge rejected application directing the petitioner to file a petition as provided under Order XXXIII of Code of Civil Procedure for declaring him an indigent person, or to pay the balance court fee and making it **W.P.(C) No.20649 of 2008** 2 clear that if not, plaint will be rejected as provided under Rule 11(c) of Order VII of Code of Civil Procedure. 2. The learned counsel appearing for petitioner and learned Government Pleader were heard. 3. The argument of the learned counsel is that subsequent to the filing of the petition, petitioner cannot file a petition in the form as provided under Rule 2 of Order XXXIII of Code of Civil Procedure, as plaint has already been instituted and as he became an indigent person subsequent to the institution of the suit, he is entitled to get himself declared an indigent person and learned Sub Judge was not justified in rejecting the application. The learned counsel argued that in an identical case, this Court in **Sivarajan v. State of Kerala &** **Others** (1998 (1) KLT 279), directed the trial court to entertain a similar petition and to decide whether plaintiff is an indigent person after conducting an independent enquiry, and learned Sub Judge was not justified in ignoring the said decision which was cited before him, and, therefore, the order is to be quashed. 4. The learned Government Pleader submitted that **W.P.(C) No.20649 of 2008** 3 plaintiff is entitled to institute the suit as an indigent person only as provided under Order XXXIII of the Code of Civil Procedure, and Rule 5 provides for rejection of the application. It was argued that as mandated under clause (a) of Rule 5, when a petition is not framed and presented in the manner prescribed by Rules 2 and 3, court is bound to reject the application, and when the petition filed before the trial court is a petition supported by an affidavit, and Rule 2 provides a different mode of the application, a petition accompanied by an affidavit is not in the form prescribed under Rule 2 and when that petition was not presented by the party as directed under Rule 3, Court cannot entertain that petition and it can only be rejected, as provided under Rule 5(a) of Order XXXIII, and, therefore, there is no reason to interfere with Ext.P4 order. ## 5. The learned counsel appearing for petitioner argued that Rule 2 provides for an application for permission to sue as an an indigent person, and once the suit is instituted by presenting the plaint and paying 1/10[th] of the court fee, a subsequent petition cannot be filed, as provided under Rule 2 and as no other form is prescribed, petitioner is entitled to file a petition supported by an affidavit stating the ingredients enabling him to get himself declared as an indigent **W.P.(C) No.20649 of 2008** 4 person, and as it is satisfied, petition cannot be rejected on the technical ground alone. The learned counsel also argued that once suit is instituted represented by a counsel, subsequent petition in the suit could be moved only through the counsel, and, therefore, petition cannot be rejected on the ground of non compliance of Rule 3 also. 5. This Court in Sivarajan's case considered the order to return an application filed by the plaintiff subsequent to the institution of suit, paying 1/10[th] of the court fee, for permission to adjudge him as an indigent person. That petition was returned recording that there is no provision to receive the petition, and, therefore, it was returned. The learned Single Judge in that case held that endorsement as 'no legal authority' was illegal and pendency of the suit itself is not a ground to return the application to sue as an indigent person and once an application is filed, trial court is bound to conduct an enquiry, on the question of indigency, and directed the trial court to conduct an enquiry whether plaintiff is entitled to prosecute the suit as an indigent person. 6. Order XXXIII of Code of Civil Procedure though provides for withdrawal of permission to sue as an indigent person **W.P.(C) No.20649 of 2008** 5 originally granted as provided under Rule 9, does not provide for prosecution of a suit instituted by paying part of the court fee, as an indigent person. But when Kerala Court Fees and Suits Valuation Act provides for institution of suit by payment of 1/10[th] of the court fee payable and provide for payment of balance court fee only after settlement of issues, it cannot be said that if a plaintiff who had paid 1/10[th] court fee and subsequently became an indigent person is not entitled to seek permission to continue to prosecute the suit as an indigent person, if in fact he subsequently became an indigent person. But for granting permission to prosecute the suit as an indigent person, plaintiff has necessarily to file a petition as contemplated under Order XXXIII of Code of Civil Procedure. Under Rule 2, the application for permission to sue shall contain the required particulars and that petition shall be signed and verified in the manner prescribed for pleadings. Therefore, even if subsequent to the filing of the plaint, a petition is filed seeking permission to continue to prosecute the suit as an indigent person and at that stage, particulars required in the plaint in the suit may not be pleaded, it is mandatory under Rule 2, that application should contain any movable or immovable property belonging to the applicant, and estimated value thereof which shall be annexed to the petition, such petition shall be signed and verified in **W.P.(C) No.20649 of 2008** 6 the manner prescribed for signing and verification of pleadings. Rule 3 mandates that such application shall be presented to the Court by the applicant in person, unless he is exempted from appearing before the court, in which case, it could be presented by an authorised agent who can answer the material questions relating to the application and who may be examined in the same manner as the party represented by him might have been examined, had such party attended in person. Under clause (a) of Rule 5, a petition not framed and presented in the manner prescribed by Rules 2 and 3 shall be rejected. Hence, Ext.P4 order rejecting the application is perfectly legal and valid. The petition was not signed and verified in the manner prescribed for signing and verification of pleadings as contemplated under Rule 2. The petition was not presented by the applicant in person as provided under Rule 3. Therefore, the petition supported by an affidavit, which is not in confirmity with Rule 2 and was filed by the counsel, and not presented by the party in person are neither framed nor presented in the manner prescribed under Rules 2 and 3. Therefore, it shall be rejected by the court as mandated under Rule 5(a). In such circumstances, I find no illegality or irregularity in the impugned order passed by the learned Sub Judge. **W.P.(C) No.20649 of 2008** 7 The order itself enables plaintiff to file a petition under Order XXXIII of Code of Civil Procedure. If petitioner files an application in the form provided under Rule 2 and presented in the manner provided under Rule 3 of Order XXXIII of Code of Civil Procedure, learned Sub Judge shall consider whether petitioner is entitled to prosecute the suit as an indigent person and pass appropriate orders, in accordance with law. For enabling the petitioner to do the same, the time provided under the impugned order is extended by seven days. The learned Sub Judge shall decide whether plaintiff became in indigent person subsequent to the filing of the suit as canvassed by him. ## **M.SASIDHARAN NAMBIAR, JUDGE** ## **nj.**