SOSAMMA JOSEPH & others v. INDIAN OVERSEAS BANK, THIRUVALLA BRANCH

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 FAO.No. 319 of 2009() --------------------OS.60/2001 of SUB COURT, THIRUVALLA .................... APPELLANTS/PETITIONERS/DEFENDANTS ADDL. 10 TO 12 -------------------------------------------------------------------------------------- 1. SOSAMMA JOSEPH, W/O. JOSEPH OOMMEN, RESIDING AT ONIYANTHALA MALAYIL HOUSE, ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK. 2. ANN MARY JOSEPH, AGED 14, D/O. JOSEPH OOMMEN, RESIDING AT ONIYANTHALA MALAYIL HOUSE ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK. REPRESENTED BY HER GUARDIAN SOSAMMA JOSEPH. 3. THARA MARY JOSEPH, AGED 12, D/O. JOSEPH OOMMEN, RESIDING AT ONIYANTHALA MALAYIL HOUSE, ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK. REPRESENTED BY HER GUARDIAN SOSAMMA JOSEPH. BY ADV. SRI.P.HARIDAS RESPONDENT: CR. PETITIONER/PLAINTIFF ------------------------------------------------------------ INDIAN OVERSEAS BANK, THIRUVALLA BRANCH. ADV. SRI.P.B.SURESH KUMAR FOR R SRI.P.B.SURESH KUMAR (B/0) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** F.A.O. No. 319 of 2009 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 16[th] day of August, 2011 ## **JUDGMENT** ## K.M. Joseph J., The appellants challenge the order passed by the Court below by which the Court rejected the application filed by the addl. defendants 10 to 12, the appellants herein to allow them pursue their counter claim as indigent persons. 2. The order passed by the Court below is extracted below: “The Village Officer has furnished report. Heard both sides and perused the records. As per the report dated 22.2.2009 of Village Officer, Eraviperoor, the petitioners are in possession and enjoyment of an extent of 31.80 Ares of property in the village. It is further stated in the report that the petitioners are getting monthly income of Rs.5,000/from O.E.M. School. Upon considering the report of the Village Officer and other materials before Court, ## F.A.O. No. 319 of 2009 :2: I am of view that, the petitioners have sufficient means to pay the requisite court fees. Hence the request to allow the petitioners to prosecute the counter claim as indigent person is refused. The petitioners shall pay the requisite court fees in civil court deposit within 15 days. With the above direction the application is rejected and I.A. is dismissed. No costs.” 3. We heard learned counsel for the appellants. The appellants are the additional defendants 10 to 12. 4. The Village Officer furnished a report indicating that the appellants are in possession of 31.80 Ares and it is stated that they are getting monthly income. It is found that they have sufficient means to pay the requisite Court fees. 5. Learned counsel for the respondent would point out that the fact that the appellants are the owners of the 31.80 Ares of land was not mentioned in the application and he relied on the judgment of this Court reported in **Mathew v. State of Kerala** (1996 (2) KLT 363), where in it is held that: - “Civil P.C. 1908, O.XXXIII Rr.1, 2 and 5 - F.A.O. No. 319 of 2009 :3: When an applicant does not disclose an asset held by him in his application, whatever be the reason, the application is liable to be rejected. 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 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 F.A.O. No. 319 of 2009 :4: wording of R.2 of O.33 of the Code it is clear that the application is liable to be rejected in terms of O.33 R.5(a) of the Code. May be occasionally 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 items also in the schedule to the application and satisfies the Court that the original omission was bonafide, it may be possible to take the view that at the time the application is taken up for disposal the same had been framed in the manner prescribed by R.2 O.33 of the Code. The postulate that the rejection could only be under O.33 R.5(b) of the Code in a case where there is a non-disclosure in the application made by an applicant with respect, cannot be accepted. When R.2 of O.33 calls for setting out the entire assets of an applicant for permission to sue as an indigent persons, there is no justification for watering down the said requirement except probably in the exceptional circumstance of a bonafide omission. F.A.O. No. 319 of 2009 :5: 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 the 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? There is no justification 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. The rejection could be under O.33 R.5 (a) of the Code in such a situation and a rejection under O.33 R.5(a) of the Code can be warded off F.A.O. No. 319 of 2009 :6: by an applicant for permission to sue as an indigent person, only by establishing that it was a bonafide omission on his part to include the asset and only after getting the application for permission amended to accord with the requirement of O.33 R.2 of the Code.” 6. Learned counsel for the appellants on the other hand relied on the judgment reported in **Rajamma Joseph v. Binu Prasad** (2010 (1) KLT 572). Therein the Court inter-alia held as follows: “The question to be considered is not mere possession of property by the appellants, but sufficient means, that is the capacity to raise money to pay court fee and it is incumbent upon the court to come to a finding on that point. It is clear that what is to be examined is whether the appellant is possessed of sufficient means to pay the requisite fee. Though it cannot be denied that the appellant owns substantial items of immovable property, it has not been shown that she derives any income therefrom” 7. Learned counsel for the respondent points out that there is no case for the appellant either before the Court below or before F.A.O. No. 319 of 2009 **==> picture [14 x 9] intentionally omitted <==** this Court that omission to include the property is by inadvertence. They have not included it before the order. 8. In such circumstances, we think that the principle in **Mathew v. State of Kerala** (1996 (2) KLT 363) will apply. Accordingly we uphold the order and give one month's time from today to pay the Court fee. 9. The F.A.O is disposed of as above. **K.M.JOSEPH, (JUDGE)** **M. L. JOSEPH FRANCIS, (JUDGE)** dl/