Saji Kumar v. Santosh alias Santoshkumar and Prasanna

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 F.A.O.NO. 111 OF 2020** **AGAINST THE ORDER DATED 30.09.2020 IN O.P.(INDIGENT) NJO.2 OF 2019 OF THE SUB COURT, CHENGANNUR** ## **APPELLANT/PETITIONER/PLAINTIFF:** ## **SAJI KUMAR** **AGED 50 YEARS, S/O. LATE DAMODARA PILLAI, RESIDING AT SHOBANALAYAM, PULIYOOR P.O, PULIYOOR VILLAGE, CHENGANNR TALUK, ALAPPUZHA DISTRICT, KERALA.** ## **BY ADV SHRI.SREEHARI INDUKALADHARAN** ## **RESPONDENTS/COUNTER PETITIONERS:** **1 SANTHOSH ALIAS SANTHOSHKUMAR, AGED 46 YEARS, S/O. LATE SREEDHARAN EDAYILEPARAMBIL VEEDU, THITTAMEL MURI, CHENGANNUR P.O, CHENGANNUR VILLAGE, CHENGANNUR TALUK, PRESENTLY RESIDING AT HARITHA HOUSE, WEST OF CHENGANNUR SRI MAHADEVAR TEMPLE, CHENGANNUR P.O., CHENGANNUR VILLAGE, CHENGANNUR TALUK.** 2 F.A.O.No.111 of 2020 ## **2 PRASANNA,** **AGED 39 YEARS, W/O. SANTHOSHKUMAR, THEVUTHARA HOUSE, EDAVAMKADU MURI, CHERIYANADU P.O, CHENGANNUR TALUK, PRESENTLY RESIDING AT HARITHA HOUSE, WEST OF CHENGANNUR SRI MAHADEVAR TEMPLE, CHENGANNUR P.O., CHENGANNUR VILLAGE, CHENGANNUR TALUK.** **BY ADV MATHEW JAMES** ## **OTHER PRESENT:** ## **SRI DEVI SHRI R.- GOVERNMENT PLEADER** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 19.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.111 of 2020 ## **JUDGMENT** ## Ajithkumar, J. This is an appeal under Section 104 read with Order XLIII, Rule 1(na) of the Code of Civil Procedure, 1908. The order dated 30.09.2020 of the Sub Court, Chengannur, dismissing O.P.(Indigent) No.2 of 2019 is under challenge. 2. Pursuant to notice, the respondents entered appearance through their learned counsel. On 17.09.2021, further proceedings in O.P.(Indigent) No.2 of 2019 were stayed for a period of one month. The order of stay was extended from time to time. 3. A report of the District Collector regarding the assets of the appellant was called for. As per the memo dated 26.03.2022, the learned Government Pleader placed on record the report of the Tahsildar, Chengannur, regarding the assets and income of the appellant. 4. Heard the learned counsel appearing for the appellant, the learned counsel appearing for respondents 1 and 2, and also the learned Government Pleader. 4 F.A.O.No.111 of 2020 5. The contentions raised by the appellant before the court below that he has no sufficient income for making payment of the court fees was not accepted. The appellant was examined as PW1 before the court below. During crossexamination, he has stated that he was a contractor engaged in floor-tiling work and he used to engage seven workers for the purpose. It was also brought out that 10 cents of land was sold by the appellant in the recent past. Taking those aspects into account, the court below had come to the conclusion that the appellant could not be said to be an indigent entitled to get exemption from payment of court fees. 6. The learned counsel appearing for the appellant would submit that the court below did not get a report of the Government before deciding the question of indigency and also that the reasons stated in the impugned order for denying leave are incorrect and unsustainable. It is further submitted that going by the report of the Tahsildar (LR), Chengannur the appellant does not have sufficient property or income so as to pay the court fees. In such circumstances, 5 F.A.O.No.111 of 2020 the order impugned in the appeal is sought to be set aside. 7. The learned counsel appearing for respondents 1 and 2 fairly conceded that the court below although gave notice to the Government Pleader while deciding the original petition, no report regarding the appellant's income and resources was obtained. The learned counsel, however, contended that despite such an infraction of the provisions Order XXXIII, Rule 6 of the Code, the evidence on record would show that the appellant is a person not entitled to get leave of the court to sue as an indigent. 8. The requirement of giving notice to the Government by the court while deciding the question of indigency cannot be said to be an empty formality. The court below ought to have decided the question after getting report from the Government, since the object of that provision is to give an opportunity to the Government, whose right is the collection of court fees, and also to arrive at a just decision in the matter. 9. In **Jagadamma v. Sheela and another [2021** 6 F.A.O.No.111 of 2020 **(3) KLT 347]** a Division Bench of this Court explained what shall be the criteria for deciding the question of sufficient means,- “22. The expression "sufficient means" occurring in Order XXXIII Rule 1 of the Code is very much significant. The Code consciously does not use the expression "without any means". Ability or wherewithal of the applicant to raise money sufficient to pay the requisite court fee is the point to be enquired into. As observed in some decisions, having "sufficient means" refers to possession of enough properties from which money sufficient to pay the requisite court - fee could be realized. One need not be in abject poverty to be qualified as an indigent person envisioned under Order XXXIII, Rule 1 of the Code.” ## 10. In **Paulose @ Paulo v. Elias K.Varghese and** **another [2012 (1) KLT 754]** , this Court considered who can be said to be a person without sufficient means in the context of Order XXXIII, Rule 1 of the Code. It was held,- “It refers not to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain whether he is capable of raising the court fee in normal circumstances. The Code uses the expression 'sufficient 7 F.A.O.No.111 of 2020 means', i.e. “means” sufficient to pay court fee after meeting the basic requirements of life. Total destitution is no prerequisite to seek justice. If he does not have sufficient means to pay court fee, justice shall not be denied to him. The benefit is conferred on persons without 'sufficient means' and not without any means at all. Pauperism is not a pre-requisite for leave to sue as an indigent person. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property which the court has to look into. Possession of 'sufficient means' refers to possession of sufficient realisable property which will enable the plaintiff to pay the court fee. Possession of hard cash sufficient enough to pay the court fee is not a prerequisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay the court fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. Even though sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of 'sufficient means' should not be at the 8 F.A.O.No.111 of 2020 expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that is yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court fee cannot be taken into account in calculating sufficient means.” 11. In the light of the law laid down in the aforesaid decisions, all aspects of the matter have to be taken into account while deciding whether or not leave to sue as indigent can be granted. In this matter, the court below after considering the oral testimony of PW1 alone, concluded that he was ineligible to sue as an indigent. The court should have obtained and considered the report of the Government as provided in Rule 6, Order XXXIII of the Code. For that failure the order impugned in the appeal is liable to be set aside. Now, a report of the Tahsildar, Chengannur regarding the income and assets of the appellant is placed on record. We are of the view that the matter requires fresh consideration by 9 F.A.O.No.111 of 2020 the court below after taking into account the said report as well. The appeal is accordingly allowed. The matter remitted to the court below for taking a fresh decision in the matter. The registry shall forward an authenticated copy of the report dated 24.03.2022 of the Tahsildar (LR), Chengannur also to the court below. The Sub Court, Chengannur shall consider the matter afresh after giving an opportunity both sides and the Government Pleader. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr