Mukami Amma and others v. Hillvalley Corporation and Pavithran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 FAO.No. 166 OF 2007() --------------------AGAINST THE ORDER DATED 13/04/2007 IN IA 6064/2004 IN OS.45/1999 OF PRL.SUB COURT,THRISSUR ## APPELLANT/PETITIONERS/REVIEW PETITIONERS 1. MUKAMI AMMA, D/O.KURUPATH MATHU AMMA, VELAPPAYA VILLAGE DESOM, THRISSUR. 2. RATHNAMMA, D/O.KURUPATH MATHU AMMA, VELAPPAYA VILLAGE DESOM, THRISSUR. 3. MOHANDAS, S/O.KURUPATH MUKAMI AMMA, VELAPPAYA VILLAGE DESOM, THRISSUR. 4. MADHUSUDANAN, S/O.KURUPATH MUKAMI AMMA, VELAPPAYA VILLAGE DESOM, THRISSUR. 5. GEETHA, D/O.KURUPATH MUKAMI AMMA, VELAPPAYA VILLAGE DESOM, THRISSUR. 6. BALAKRISHNAN, S/O.CHAMMANI LAKSHMI, VALAPPAYA VILLAGE DESOM, THRISSUR. - BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) ## RESPONDENTS: RESPONDENTS/RESPONDENTS /PLAINTIFF & 1ST DEFENDANT 1. HILLVALLEY CORPORATION, THIRUR DESOM, KOLAZHY VILLAGE, THRISSUR. 2. PAVITHRAN, S/O.PUCHALIL ACHUTHAN, MULANKUNNATHUKAVU DESOM, KILLANNUR VILLAGE, THRISSUR TALUK. (NAME OF THE SECOND RESPONDENT IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF APPELLANTS VIDE ORDER DATED 15.1.208 ON I.A. 202/2008.) **FAO 166/2007** 2 BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **FAO 166/2007** 3 ORDER ON I.A. NO. 2069/2007 IN FAO 166/2007 // DISMISSED // 30.1.2008. SD/-, P.R. RAMAN, JUDGE. SD/-, V.K. MOHANAN, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- ## P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. NO. 166 OF 2007 = = = = = = = = = = = = = = DATED THIS, THE 30TH DAY OF JANUARY, 2008. ## J U D G M E N T ## Raman, J. Appellants are the defendants in O.S. 45/1999 on the file of the Principal Sub Court, Thrissur. The suit was instituted by the plaintiff for realisation of money. The defendant filed written statement denying his liability and even disputing the transaction based on which the amount is claimed. The case was posted on different dates and on 25.9.2004 an adjournment was sought for by the defendants on the ground of illness of their counsel. That was ,however, rejected by the court below whereupon the witnesses examined by the plaintiff were cross-examined by a lawyer attached to the Office of the counsel appearing for the defendants. It was subsequently, that the suit was decreed in favour of the plaintiff. The appellants subsequently filed a review petition along with an application - I.A. 6064/2004 seeking to file the review application as an indigent person under Order 33 Rule 1 of the Code of Civil Procedure. The plaintiff/respondent filed his objection contending that the said application is not maintainable. The court below, by the impugned order, held that the **FAO 166/2007** :2: application filed under Order 33 will not lie for filing a review application. Impugning the said order, the present appeal is filed. 2. After referring to the decision of the Madras High Court in **U.Ananthakrishna Baliga v. State (** AIR 1943 Madras 177) it was held that a petition for review cannot be regarded to be in the nature of continuation of the suit at least up to the time that it is not granted. Though the appellant, placing reliance on a decision of this Court in **Mathai Brijitha v. Thankappan Nair** (1992(2) KLT 486) contended that the review petition should be treated as a continuation of the proceedings, the same was not accepted and held that the review petition is not a suit or appeal as contemplated under Order 33 and dismissed the petition. The appellants would contend that the review petition being a continuation of the suit, the right available under Order 33 cannot be denied. Learned counsel for the respondents, on the other hand, would support the order of the court below. 3. Heard both sides. As per Rule 1 of Order 33, subject to the provisions thereunder contained, any suit may be instituted by an indigent person. Who is an indigent person is further explained in the explanation thereunder and for the limited purpose of the case on hand, it is not necessary to refer to the same. Even though Order 33 merely refers to a **FAO 166/2007** :3: suit, no doubt, by virtue of Order 44 Rule 1, any person is entitled to prefer an appeal who is unable to pay the required court fee payable on the memorandum of appeal. Therefore, if it is an appeal filed by the defendant, no doubt, he is entitled to file such appeal as an indigent person, if he is a person unable to pay the fee required on the memorandum of appeal. Likewise in a suit a defendant is entitled to claim set off or is entitled to file a counter claim which will have the same effect as that of a plaint. By virtue of Order 33 Rule 17, any defendant who desires to plead a set-off or counter-claim, may be allowed to set up such claim as an indigent person and the provisions contained under Order 33 so far as may be apply to him as if he were a plaintiff and the written statement is his plaint. The above provisions would clearly show that there is no distinction made between the plaintiff and the defendant in the matter of extending the benovalent provisions contained under Order 33 for instituting the proceedings as an indigent person when in a proceeding where he is required to pay court fee he is able to show that he is unable to pay the same . The object of the rule is to enable the 'lis' being adjudicated on merits without payment of the court fee at the time of institution of the proceedings, when the party is unable to pay the same, being indigent. **FAO 166/2007** :4: 4. By virtue of Order 44 one can file an appeal as indigent, be it the plaintiff or defendant as the case may be. Let us consider a situation where the defendant's appeal is dismissed and he files a review petition thereafter. Can it be said that such a review petition as an indigent will not lie? The answer is contained in the decision of this Court in **Mathai Brijitha v. Thankappan Nair** (1992(2) KLT 486). That was a case where the review was filed by the appellant who lost the appeal and thereafter filed the review petition and this Court held that review is only a continuation of the appeal and therefore, he cannot be denied the benefit under Order 33 if he is otherwise entitled to. In so far as there is no distinction made as between the plaintiff and defendant, the situation is not different where the review is filed by the defendant and the principle laid down in **Mathai Brijitha** 's case (1992 (2) KLT 486) will equally apply. Therefore, when the suit is decreed the defendant has got two options. Either he can prefer an appeal and admittedly as an appellant he is entitled to seek the benefit of Order 33 Rule 1 or he can file a review. So when he has a statutory right of filing a review, there is no reason why he be denied the benefit of Order 33 and compel him to file an appeal to get such benefit. Therefore, viewing the matter from any angles, we have to hold that though Order 33, in specific terms, does not refer to a review petition in the light of the Division Bench **FAO 166/2007** :5: decision of this Court cited supra and on consideration of the various provisions of the law as referred to above, it has to be held that the review petition- whether it is filed at the instance of the plaintiff or at the instance of the defendant - as the case may be, the party is entitled to seek the benefit of Order 33 Rule 1 if he is unable to pay the court fee. 5. In the above view of the matter, we respectfully disagree with the observation of the Madras High Court in **Ananthakrishna Baliga** 's case (AIR 1943 Madras 177). The order passed by the court below is set aside. The court below shall consider the matter on merits in terms of the provisions contained under Order 33 and decide as to whether the plaintiff - appellant is unable to pay the court fee and whether such application ought to be granted. The parties shall appear before the court below on 15th February, 2008. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-