OP(C) No.1208 of 2020 (OS 178 of 2016), High Court of Kerala at Ernakulam – Vyshakh Unnikrishnan and Vaishna Unnikrishnan v. Usha, Jalaja, Shushama, Sumana Sujeevi, Sheeja and Sheeba

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943 OP(C) NO. 1208 OF 2020** **OS 178/2016 OF SUB COURT, IRINJALAKUDA** ## **PETITIONER/S:** VYSHAKH UNNIKRISHNAN AGED 30 YEARS S/O. LATE OLLASSERI, UNNIKRISHNAN, PULLOOR VILLAGE AND DESOM KODUNGALLUR TALUK, THRISSUR DISTRICT BY ADVS. K.S.BHARATHAN SRI.ABEL ANTONY SRI.CHRISTINE MATHEW ## **RESPONDENT/S:** 1 USHA AGED 58 YEARS W/O. THANDASSERI MOHANAN, KOTTANALLUR VILLAGE AND DESOM, MUKUNDAPURAM TALUK,PIN-680 7633 2 JALAJA AGED 53 YEARS W/O. KOLLIKKATHARA NANDANA, THEKKUMKARA VILLAGE AND DESOM, MUKUNDAPURAM TALUK, PIN-680 733 3 SUSHAMA AGED 52 YEARS W/O.ANAKKATHIL SAHADEVAN, PADIYOOR DESOM, MUKUNDAPURAM TALUK, PIN-680 733 4 SUMANA SUJEEV AGED 46 YEARS W/O. THARYIL SUJEEV, PERINJANAM VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN-680 686 5 SHEEJA AGED 46 YEARS W/O. KUTTIPARAMBIL UNNIKRISHNAN, THEKKUMKARA VILLAGE, LOKAMALESWARAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK,PIN-680 733 6 SHEEBA AGED 41 YEARS W/O. KAIPARAMBIL SURESH BABU, LOKAMALESWARAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK,PIN-680 733 O.P.(C) No.1208 of 2020 **==> picture [16 x 8] intentionally omitted <==** 7 VAISHNA UNNIKRISHNAN, AGED 29 YEARS D/O.LATE OLLASSERI UNNIKRISHNAN, W/O. MUNDAKKAL SIBIL, KODAKARA VILLAGE, PUTHUKKAVU DESOM, MUKUNDAPURAM TALUK,PIN-680733 BY ADV SRI.SANTHEEP ANKARATH **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) No.1208 of 2020 -3- ## **JUDGMENT** **Dated this the 28[th] day of July, 2021** **Petitioner is the defendant in O.S.No.178 of 2016 on the files of the Sub Court, Irinjalakuda. The suit is filed by respondents 1 to 6 herein for recovery of money from the petitioner and the 7[th] respondent. On being called upon to pay the balance court fee, the plaintiff’s initially sought enlargement of time for remitting the balance court fee and later filed an application under Order 33 Rule 1 CPC, seeking permission to sue as indigent persons. Overlooking the objections filed by the defendants, the court below issued Ext.P7 order, permitting the plaintiffs to sue as indigent persons. Hence, this original petition.** O.P.(C) No.1208 of 2020 -4- **2. Heard Sri.K.S.Bharathan, learned Counsel for the petitioner and Sri.Santheep Ankarath, learned Counsel for the respondents.** **3. The specific contention put forth by the learned Counsel for the petitioner is that Ext.P7 order is bad for non-compliance of the mandatory requirement under Order 33 Rule 2 of CPC. In elaboration, it is submitted that Order 33 Rule 2 stipulates that applications seeking permission to sue as indigent persons should contain the particulars required in regard to plaints in suits and schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof. Attention is drawn to Rule 5 of Order 33, to submit that non-compliance of the mandatory requirement would result in rejection of the application. Referring to Ext.P5 affidavits filed by the plaintiffs in support of** O.P.(C) No.1208 of 2020 -5- **their applications under Order 33 Rule 1, it is pointed out that, while value of the movable properties are shown in the schedule annexed to the affidavit, the value of the immovable properties are not shown. It is contended that in spite of this fatal omission being pointed out, the trial granted the permission sought for. Learned Counsel relied on the decision of the Division Bench of this Court in** _**Mathew v. State of Kerala [1996 (2) KLT 363]**_ **wherein, while dilating on the power to reject applications under Order 33 Rule 1, this Court held as** ## **follows:** **“** _**6. O.33 R.5 deals with rejection of an application for permission to sue as an indigent person. Clause (a) thereof says that the application shall be rejected where it is not framed and presented in the manner prescribed by Rr.2 and 3. Sub-r. (b) calls for rejection where the applicant is not an indigent person. O.33 R.2 clearly provides that every application for permission to sue as an indigent person shall contain the particulars required in**_ O.P.(C) No.1208 of 2020 -6- _**regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant with the estimated value thereof shall be annexed thereto and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. In other words, what R.2 contemplates is a scheduling of any movable or immovable property (emphasis supplied) belonging to the applicant with the estimated value thereof. When an applicant does not disclose an asset held by him in his application, whatever be the reason, on the wording of R. 2 of O. 33 of the Code it is clear that the application is liable to be rejected in terms of 0.33 R. 5(a) of the Code. In Vazhunnavar's case, His Lordship Justice Raghavan (as then was) made an exception only in cases where a bonafide omission to include an asset was made by an applicant. .......Under the scheme of O.33 of the Code, a plaintiff is exempted from paying the Court fee that is payable by any other litigant who comes to court for relief at the time of institution of the suit on the ground that he is not in a position to pay the court fee. If a plaintiff seeks such a special privilege to pursue his litigation, is there any reason not to insist on his strictly complying with the requirement of 0.33 of the Code and coming to court with clean hands? According to us, there is no jurisdiction for removing the immunity available to the defendant in a suit and to grant a right to the plaintiff to prosecute the suit without payment of the Court fee unless the plaintiff comes to court with clean hands, making a disclosure of all his**_ O.P.(C) No.1208 of 2020 -7- _**assets. The word 'any movable or immovable property' used in O. 33 R. 2 according to us ought to be given its natural meaning and on the scheme of the Code, it is clear that failure to comply with any of the requirements of O. 33 R. 2 or R. 3, should entail the rejection of the permission sought for by a plaintiff.......”**_ **4. Answering the contentions, learned Counsel for the respondents submitted that three suits are pending between the same parties. As against the judgment in one of the suits, respondents 1 to 6 have preferred a Regular First Appeal before this Court in** _**forma pauperis**_ **and the appeal has been admitted. According to the learned Counsel, this Court having found the claim of indigency to be** _**bona fide**_ **, the technical objection raised by the petitioner against Ext.P7 is liable to be rejected. It is submitted that the omission to state the value of the immovable properties was inadvertent and that, given an opportunity, respondents 1 to 6 will correct the mistake.** O.P.(C) No.1208 of 2020 -8- **5. As rightly contended by the learned Counsel for the petitioner, compliance of the requirements under Order 33 Rule 2 CPC is mandatory. As per Order 33 Rule 5, an application for permission to sue as an indigent person, which is not framed and presented in the manner prescribed by Rules 2 and 3 thereof, has to be rejected. Respondents 1 to 6 have not stated the value of their immovable properties in the schedule to the applications filed by them. As such, the court below ought to have rejected the application. Hence, Ext.P7 order, which has been issued without complying with the vital requirement, cannot be sustained.** **6. Learned Counsel for respondents 1 to 6 prayed that an opportunity may be afforded for respondents 1 to 6 to submit their applications in strict compliance of the requirements under** O.P.(C) No.1208 of 2020 -9- **Order 33 Rule 2. In spite of the objection raised by the learned Counsel for the petitioner, taking into account the pendency of the other suits and the Regular First Appeal, I deem it appropriate to grant permission.** **In the result, Ext.P7 order is set aside. Respondents 1 to 6 are permitted to file proper applications under Order 33 Rule 1. On such an applications being filed, the court below shall pass a reasoned order, after considering all aspects, including the objections of the defendants.** **Sd/-** **V.G.ARUN JUDGE** **Scl/19.07.2021** O.P.(C) No.1208 of 2020 -10- ## **APPENDIX OF OP(C) 1208/2020** |PETITIONER|EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE PLAINT DATED| ||11.11.2016 IN OS NO.178 OF 2016 ON THE| ||FILES OF HON'BLE SUB COURT,| ||IRINJALAKUDA| |EXHIBIT P2|TRUE COPY OF THE WRITTEN STATEMENT| ||DATED 20.05.2017 IN OS NO.178 OF 2016| ||ON THE FILES OF HON'BLE SUB COURT,| ||IRINJALAKUDA| |EXHIBIT P3|TRUE COPY OF INTERLOCUTORY APPLICATION| ||DATED 24.06.2017 IN OS NO.178 OF 2016| |EXHIBIT P4|TRUE COPY OF THE OBJECTION DATED| ||22.09.2017| |EXHIBIT P5|TRUE COPY OF IA NO.1550 OF 2017 DATED| ||12.07.2017 IN OS NO.178 OF 2016 ON THE| ||FILES OF HON'BLE SUB COURT,| |EXHIBIT P6|TRUE COPY OF OBJECTION FILED BY THE| ||PETITIONER IN IA NO.1550 OF 2017 DATED| ||08.06.2018 IN OS NO.178 OF 2016 ON THE| ||FILES OF HON'BLE SUB COURT,| ||IRINJALAKUDA| |EXHIBIT P7|TRUE COPY OF THE ORDER DATED| ||27.02.2020 IN IA NO.1550 OF 2017 IN OS| ||NO.178 OF 2016 ON THE FILES OF HON'BLE| ||SUB COURT, IRINJALAKUDA|