Ravi (Ravi N.R.) v. Shiny, Ayyappan, Shaju and Binudas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936** **FAO.No. 246 of 2013 ()** **----------------------AGAINST THE ORDER IN OP (INDIGENT) 19/2007 of I ADDL.SUB COURT, THRISSUR DATED 09-07-2013** **--------------------** ## **APPELLANT/PETITIONER/PLAINTIFF :-** **------------------------------------** **RAVI (RAVI N.R.), AGED 62 YEARS, S/O. NADEVILEDATH RAMAN, NADUVILEDATH HOUSE KUNDUKAD DESOM, THEKKUMKARA VILLAGE, THALAPPILLY TALUK THRISSUR DISTRICT, PIN - 680 028.** **BY ADV. SRI.JOSE PALLATTUKARAN** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS :-** **----------------------------------------** **1. SHINY, AGED 52 YEARS D/O. LATE AYYAPPAN, POOKUTH VEEDU, POOKUNNU DESOM MANNARKAD VILLAGE, MANNARKADU TALUK, PALAKKAD-678582.** **2. AYYAPPAN (DIED), POOKUTH VEEDU, POOKUNNU DESOM, MANNARKAD VILLAGE, MANNARKKADU TALUK, PIN-678582.** **3. SHAJU, S/O. LATE AYYAPPAN, POOKUTH HOUSE, POOKUNNU DESOM MANNARKADU VILLAGE, MANNARKAD TALUK, PALAKKAD-678582.** **4. BINUDAS, S/O. LATE AYYAPPAN, POOKUTHU HOUSE, 15/1236 VADAVALLY, SATNAPALLY P.O.-522 403, ANDHRA PRADESH.** **R1 BY ADV. SRI.V.M.KURIAN SRI.K.T.THOMAS** **GOVERNMENT PLEADER SRI.P.PADMALAYAN** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **FAO.No.246/2013** ## **APPENDIX** Appellant's Exhibits :- Annexure A1 :- True copy of the OP(Ind) 19/2007 on the file of 1[st] Addl. Sub Court, Thrissur. Annexure A2 :- Receipt bearing No.0878178 dated 18.7.2013. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ. ------------------------------------------------------------F.A.O. No.246 of 2013 --------------------------------Dated this the 14[th] day of August 2014** ## **J U D G M E N T** ## T.R.Ramachandran Nair, J. This appeal is from the order in O.P.(Indigent) No.19/2007 and the appellant herein is the plaintiff. 2. The petition was filed under Order XXXIII Rule I of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short) seeking permission to sue as an indigent person. The first respondent before the court below, who is the first respondent herein opposed the prayer. The first respondent also has let in evidence to the effect that the petitioner has got sufficient means to pay the court fee on the plaint. The nature of the objections raised by the first respondent has been stated in detail by the court below in paragraph 3 of the order. Oral evidence was given by the appellant as PW1 and by the first respondent as RW1. Exts.B1 to B28 documents F.A.O. No.246 of 2013 -: 2 :- were marked on the side of the first respondent. 3. There is elaborate consideration of various aspects by the court below and finally by the impugned order, the appellant's prayer was refused and he was given 30 days time to pay the court fee also. 4. The main reason shown by the court in the impugned order is that the appellant has suppressed the details regarding one institution, viz; Rachana Publications which was being conducted by him and also of certain bank accounts. By relying upon the principles stated in the decision in **Mathew** v. **State of Kerala** [1996 (2) KLT 363], the court below found that the application is liable to be rejected in terms of Order XXXIII Rule 5 of the CPC. The court below also relied upon Order XXXIII Rule 7(1A) of CPC as evidence was taken. Under this Rule, the application is to be rejected when it is not framed and presented in the manner prescribed under Rules 2 and 3. Finally at page 10 of the order, in paragraph 13, it is held that when there is F.A.O. No.246 of 2013 -: 3 :- suppression of properties held by the petitioner, consideration of sufficiency of means does not really arise. 5. We have heard the counsel appearing for both sides. 6. Learned counsel for the appellant submitted that the evidence now placed against the appellant cannot, on a proper appreciation of facts lead to the conclusion that he had suppressed various aspects. At any rate, the learned counsel submits that the appellant was confronted with the objections of the respondent only at the stage of evidence and hence, actually the appellant did not get an opportunity to show his bonafides or offer explanation in the matter. In that context, he relied upon the decision of a Division Bench of this Court in **Rajamma Joseph** v. **Binu Prasad** [2010 (1) KLT 572]. 7. Learned counsel for the first respondent submitted that the court below has not gone wrong in taking the view that the appellant has suppressed certain materials before the court while filing the application, viz; in not including certain F.A.O. No.246 of 2013 -: 4 :- items of assets and source of income. It is submitted that there was ample opportunity for him, even for getting the benefit of the dictum laid down in **Rajamma Joseph** v. **Binu Prasad** [2010 (1) KLT 572]. It is further pointed out that, such being the case, after the final disposal of the application, the appellant cannot contend for the position that he should be given an opportunity to establish that the omission to mention certain assets in the application is bonafide. 8. During the arguments, it is pointed out before this Court by the learned counsel for the appellant that, actually the first respondent had not filed any counter to the application, which is evident from paragraph 3 of the impugned order. Therefore, the learned counsel submitted that, it is a case where the appellant cannot be blamed for not availing any opportunity to prove that the omission was bonafide since after the evidence was taken, the matter was taken up for orders. It is submitted that in the absence of a counter, he could not have been expected to meet the case of F.A.O. No.246 of 2013 -: 5 :- the respondent, that too, at the stage of evidence. Therefore, the learned counsel pleaded for a chance to the appellant to show the bonafides with regard to the alleged omissions made. 9. The records of the court below were called for and verified. It is seen that a counter to the petition is not found to be part of the records. The records of the court do not show an objection to the main petition, but it is filed only in I.A.No.1292/2007 as well as I.A.No.2823/2007. 10. In fact in the decision reported in **Rajamma Joseph** v. **Binu Prasad** [2010 (1) KLT 572] while referring to the earlier decision in **Mathew** v. **State of Kerala** [1996 (2) KLT 363], it is held as follows :- “However, the said decision has also noticed the fact that cases may arise where either due to inadvertence or for reasons beyond his control, an applicant might omit to include an item of property in his application for permission to sue as an indigent person. If before the final disposal of the application, the applicant takes steps to include the said item also in the schedule to the application and satisfies court that the original omission was bonafide, the defect could be cured. Considering F.A.O. No.246 of 2013 -: 6 :- the question as to whether a full and complete disclosure of all the assets of the applicant was a necessary pre-requisite for taking the benefit of O.33 R.1, the Court has made the following observation : “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 O.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 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.” 11. Of course, the party in such a case can avail of the opportunity to apprise the court about his bonafides before final disposal. But as far as this case is concerned, it is true that in the absence of counter filed by the respondents, he did not get an effective opportunity. F.A.O. No.246 of 2013 -: 7 :- 12. Therefore, we are of the view that, the appellant can be given a further opportunity and the respondents can also be given an opportunity to file a proper counter. 13. The impugned order is therefore, set aside and the appeal is allowed. The court below will take up O.P.(Indigent) No.19/2007 and will pass a fresh order in the light of the observations made above. Every effort will be taken up to dispose of the same within a period of three months from the date of receipt of a copy of this judgment. No costs. **Sd/T.R.RAMACHANDRAN NAIR, JUDGE.** **Sd/P.V.ASHA, JUDGE.** Jvt