Kolancheri Vijayan v. Prakasan C.K., Madhu K.C alias Nisheed, and Gireesh C.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** **FAO.No.187 OF 2019** **AGAINST THE ORDER IN IA.3290/2017 IN AS 188/2018 DATED 30.10.2019 OF DISTRICT COURT, KOZHIKODE** **AGAINST THE ORDER IN IA 2267, 2268/2019 IN IA.3290/17 IN AS 188/18 DATED 30.10.2019 OF DISTRICT COURT, KOZHIKODE** ## **APPELLANT/PETITIONER /APPELLANT/1ST DEFENDANT:** **KOLANCHERI VIJAYAN, AGED 59 YEARS S/O.KOLANCHERI VELAYUDHAN, 'VAISAKH' AYURVEDIC BHAVAN, RLY STATION ROAD, NEAR LIONS CLUB, MUTTAMBALAM VILLAGE/POST, KOTTAYAM THALUK/DISTRICT.** **BY ADVS. SRI.MANJERI SUNDERRAJ SRI.A.SANOOJ** ## **RESPONDENTS/RESPONDENTS/(PLAINTIFF, D2 & D3):** **1 PRAKASAN C.K., S/O.GOPALAN, PUNATHIL MEETHAL, PO VELLIPARAMBA, KUTTIKATOOR AMSOM, VELLIPARMBA DESOM, KOZHIKODE- 673008. 2 MADHU K.C ALIAS NISHEED, AGED 48 YEARS KOLANCHERI, VIJAY VIHAR, POST FEROKE, FEROKE AMSOM NALLUR DESOM, KOZHIKODE THALUK- 673301. 3 GIREESH C., AGED 43 YEARS S/O.GOPALAN, SASTHA, FEROKE AMSOM NALLUR DESOM, KOZHIKODE THALUK- 673301.** **R1 BY ADV. SRI.T.SETHUMADHAVAN (SR.) R1 BY ADV. SMT.DEEPA NARAYANAN R1 BY ADV. SMT.PREETHI. P.V. R1 BY ADV. SRI.M.V.BALAGOPAL R2 BY ADV. SRI.S.R.SREEJITH R3 BY ADV. SRI.V.H.UBAIDHULLA** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO.No.187 OF 2019** **2** ## **J U D G M E N T** The petitioner in I.A.No.3290 of 2017 in A.S.No.188/2018 on the files of the District Court, Kozhikode, is the appellant in this case, wherein, he impugns the order therein, rejecting his request to permit him to prosecute the appeal in forma pauperis; along with the order of the said Court in I.A.Nos.2267/2019 and 2268/2019 in the aforementioned I.A, as per which his request for permission to amend the schedule of properties has also been rejected. 2. According to the appellant, at the time when he moved his application under Order XLIV Rules 1 and 3 of the Code of Civil Procedure (CPC for short), seeking leave to present the appeal in forma pauperis, he had omitted to include 10.6 cents of land owned by him and his wife in Muttambalam Village in Kottayam Town and that this was only a bona fide omission. He says that when he, therefore, attempted to amend the application through I.A.No.2267/2019, filed along with I.A.No.2268/2019 praying for re-opening evidence in the main application, they were both rejected by the First Appellate Court solely for the reason that the said **FAO.No.187 OF 2019** **3** application had been preferred belatedly and after the main application under Order XLIV Rule 1 of the CPC, namely I.A.No.3290/2017, had been taken for orders. The appellant thus prays that this appeal be allowed and the impugned orders be set aside. 3. In response to the submissions on the afore lines made by Sri.Manjeri S. Sunder Raj, learned counsel appearing for the appellant, Sri.T.Sethumadhavan, learned Senior Counsel, instructed by Sri.Balagopal, learned counsel for the 1[st] respondent, submits that the impugned orders of the First Appellate Court is without error, since the fact that the appellant has himself filed an application to amend the schedule appended to his application preferred under Order XLIV Rule 1 of the CPC would establish that necessary particulars had not been furnished therein; and consequently that, going by Order XXXIII Rule 5 of the CPC, the said application can only be rejected. The learned Senior Counsel vehemently submitted that the omission of the appellant to show 10.60 cents of land in the schedule of properties cannot be seen to be an omission but only a deliberate design, because **FAO.No.187 OF 2019** **4** his client has preferred objections to the application at the first instance, contending that this property had not been disclosed by the appellant and further that even though the appellant had also given evidence as PW1 touching upon this property, he had made no attempt to amend the schedule to the application until it was taken for orders. The learned Senior Counsel says that, as is clear from the findings of the First Appellate Court in paragraph No.6 of the order in I.A.No.2267/2019, the application preferred by the appellant under Order XLIV Rule 1 of the CPC was filed on 27.07.2018 and PW1, namely the appellant herein, was examined and cross examined on 12.06.2019 and on 24.07.2019 respectively. The learned Senior Counsel says that the evidence of the appellant was closed on 19.08 **.** 2019 and that the matter was listed repeatedly and adjourned at least on two occasions, to be heard finally on 28.09.2019 and was thus taken for orders on 05.10.2019. He says that it is only thereafter that the appellant filed the application for amendment and therefore, that the Court has correctly found that it was not a mere omission in not showing the 10.60 cents of land in the application, but that **FAO.No.187 OF 2019** **5** it was deliberately done to keep away the truth from it. 4. Even when I find some force in the submissions of Sri.T.Sethumadhavan, learned Senior Counsel, going by the provisions of Order XXXIII of the CPC, particularly that the non disclosure of assets by a person seeking the leave of the Court can certainly lead to the rejection of the application, I am also guided by the judgment of a Division Bench of this Court in **K.U.Mathew v. State of Kerala and Others [1996 (2) KLJ** **237],** which, interestingly, both sides rely upon equally. In this judgment, the declaration by the Division Bench is to the effect that in the absence of full disclosure in an application under Order XXXIII or XLIV of the CPC, will certainly entail the rejection of the same, but that if, before the final disposal of the said application, the applicant takes steps to include the item not disclosed also in the schedule to the satisfaction of the Court, establishing that this omission was bona fide, it may be possible to take a view that the said application had been framed in the manner prescribed by Rule 2 of Order XXXIII of the CPC. 5. Of course, when I say this, I am fully cognizant with **FAO.No.187 OF 2019** **6** the submissions of the learned Senior Counsel that since the application had been heard and taken for orders by the First Appellate Court on 30.10.2019 **,** the declaration as afore in **K.U.Mathew** (supra) would not apply, since the subsequent attempt of amendment cannot cure the defects in the application. However, it is without doubt that in **K.U.Mathew** (supra) the Division Bench clearly has opined that if an applicant take steps to cure the defect before the final disposal of the application, then it is certainly incumbent upon the Court to consider whether the alleged omission is bona fide and to then consider the amendment in terms of law. 6. In the case at hand, the impugned order in the amendment application, namely I.A.No.2267/2019, has rejected the request of the appellant herein, solely for the reason that the said application has been preferred after the main application under Order XLIV Rule 1 of the CPC had been taken for orders. I am afraid that this by itself could not have been a reason to reject the application, since the Court was certainly enjoined to consider whether the omission to list all the properties of the appellant was bona fide or otherwise. **FAO.No.187 OF 2019** **7** When no such consideration is seen in the impugned order, this Court certainly will be justified in intervening, so as to obtain substantial justice to both sides. 7. That said, I notice from the order in I.A.No.3290/2017, which is the one preferred by the appellant under Order XLIV Rules 1 and 2 of the CPC, that it has been rejected finding that the appellant had not disclosed 10.60 cents of land in his and his wife's name. In view of my observations above and in view of the fact that the appellant, while being examined as PW1, has stated that there are no commercial buildings in the said property and that it is owned by him and his wife jointly, where there are presently residing, the said order also would require to be reconsidered by the First Appellate Court, after reconsidering I.A.No.2267/2019 filed for amendment of the said application. Resultantly and for the reasons above, I allow this appeal and set aside both the orders impugned herein; with a consequential direction to the First Appellate Court to reconsider I.A.No.2267/2019 and I.A.No.2268/2019 and thereafter, depending upon the decision to be taken thereon, **FAO.No.187 OF 2019** **8** to take up I.A.No.3290/2017 and dispose of the same, as expeditiously as is possible, after affording necessary opportunity to both sides. This appeal this thus ordered; however, without making any order as to costs and directing the parties to suffer their respective costs. ## **SD/-** **DEVAN RAMACHANDRAN** rp **JUDGE**