Sujanapal v. Shahul Hameed and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** ## **OP(C).No. 566 of 2016 (O)** **-------------------------O.S 365/2013 OF THE III[rd] ADDL. SUB COURT, KOZHIKODE ---------------** **PETITIONER(S)/PLAINTIFF: --------------------------------------** **SUJANAPAL, AGED 61 YEARS, S/O. LATE SEKHARAN, PALANGADATH HOUSE, AREEKKAD, P.O.NALLALAM AMSOM AND DESOM, KOZHIKODE.** **BY ADV. SRI.NIRMAL. S** ## **RESPONDENT(S)/PETITIONER:** **--------------------------------------------** **1. SHAHUL HAMEED, AGED 41 YEARS, S/O. NOORUDEEN, MOTHIRAPARAMBATH HOUSE, M.P. MANZIL, VAIDYARANGADI, RAMANATTUKARA P.O., KOZHIKODE - 673 033.** ## **2. M. RAJAGOPAL,** - **PRINCIPAL SUB INSPECTOR, KURITHIKKAD POLICE STATION, P.O. BHARANIKKAVU POLICE STATION, MAVELIKKARA, ALAPPUZHA-690 541.** **3. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **4. CITY POLICE COMMISSIONER, ERNAKULAM-682 031.** - **R1 BY ADV. DR.V.N.SANKARJEE R1 BY ADV. SRI.S.SIDHARDHAN R1 BY ADV. SRI.V.N.MADHUSUDANAN R1 BY ADV. SMT.C.K.LEKHAMMA R1 BY ADV. SMT.R.UDAYA JYOTHI R1 BY ADV. SRI.M.M.VINOD R1 BY ADV. SRI.PRATHAP. S.R.K. R1 BY ADV. SMT.M.SUSEELA R1 BY ADV. SMT.MARY JOHN R2 BY ADV. SRI.VINOD SINGH CHERIYAN R3 & R4 BY SR. GOVERNMENT PLEADER SRI. M.K.ABOOBACKER** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 566 of 2016 (O)** **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **P1-TRUE COPY OF THE I.A 3593/2015 IN O.S 365/2013 OF THE 3RD ADDL. SUB COURT, KOZHIKODE** **P2-TRUE COPY OF THE COUNTER AFFIDAVIT DATED 14/01/2015** **P3-TRUE COPY OF THE I.A.3593/2015 IN O.S 365/2013** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **STK** **'C.R.'** ## **K. HARILAL, J.** ## **---------------------------** ## **O.P.(C) No.566 of 2016** ## **---------------------------------------** ## **Dated this the 25[th] day of May, 2016** ## **JUDGMENT** The petitioner is the plaintiff in O.S.No.365/2013 on the files of the III Additional Sub Court, Kozhikode, a suit claiming a sum of Rs.25,00,000/-, as damages, from the defendants/respondents. This O.P.(C) is filed challenging the order passed in I.A.3593/2015 filed by the 1[st] respondent in the original suit. In the aforesaid Interlocutory Application filed under Order XXXIII Rule 9 of the C.P.C., the 1[st] respondent sought for withdrawal of the permission granted to the petitioner to sue as an indigent person. The petitioner had earlier filed an application, along with the suit, seeking permission to sue as an indigent person and the same was allowed, after taking evidence. Eventhough, notice was issued to the 1[st] respondent also, in the aforesaid proceedings, he failed to appear before the court and he was set _ex parte_ in that proceedings. Though, the 1[st] respondent had challenged ## **O.P.(C) No.566 of 2016 2** the said order granting permission to the petitioner to sue as an indigent person, as I.A. 3260/2013, the said application was dismissed by the court. 2. The aforesaid application has been filed on the ground that the petitioner had obtained the order to sue as an indigent person by practising fraud, misrepresentation and deceit on the court and Government. The petitioner had suppressed the material facts and made false statement in the application seeking permission to sue as an indigent person. The petitioner had obtained a decree against the 1[st] respondent as O.S.No.740/2009 on the files of the Sub Court, Kozhikode, in which the 1[st] respondent deposited an amount of Rs.2,10,000/-, which includes Rs.25,000/-, on 11.11.2011, Rs.25,000/- on 3.1.2012 and Rs.20,000/- on 3.3.2012 and Rs.1,40,000/- on 28.01.2014 before the Judicial First Class Magistrate's Court (Marad Cases), Kozhikode and the petitioner had withdrawn all these amounts. The petitioner had filed 18 cases under Section 138 of the N.I. Act before the Judicial First Class Magistrate's Court ## **O.P.(C) No.566 of 2016 3** (Marad Cases), Kozhikode, against various persons and the 1[st] respondent collected some of the numbers of the cases as C.C.No.624/2009, S.T.Nos.370/2006, 1177/2006, 1388/2006, 666/2007, 478/2007, 561/2007 and 612/2007 and he had obtained more than Rs.7,50,000/- from these cases. Besides these cases, he had filed 17 other cases under Section 138 of the N.I. Act, as complainant, before other Magistrate Courts. One Venkateswaran had deposited Rs.1,65,000/- before the Judicial First Class Magistrate's Court, Kozhikode-V, as per the order in S.T.No.512/2007 and the petitioner had withdrawn the said amount while the indigent O.P. was pending. The petitioner had received Rs.50,000/- as compensation, as per the order passed by the Kerala State Human Rights Commission in H.R.M.P.No.404/2012 on 20.09.2012. According to the 1[st] respondent, when the petitioner had enough and ample funds to pay the court fee, he had deliberately, with an intention to cheat the court and the Government, falsely made a representation that he has no means to pay the court fee and fraudulently obtained the ## **O.P.(C) No.566 of 2016 4** permission to sue as an indigent person. 3. The petitioner filed a counter statement denying the allegations, except the receipt of certain amounts, as alleged by the 1[st] respondent. According to him, almost all receipts of the amount mentioned in the petition filed by the petitioner relates to a period long before the filing of the petition, seeking permission to sue as an indigent person and some amounts are received after getting permission to sue as an indigent person. He admitted that he had received Rs.2,10,000/- after granting permission to sue as an indigent person. Similarly, he admitted that he had received Rs.50,000/-, granted by the Human Rights Commission; but the said payment was before filing the petition under Rule 9 of Order XXXIII of the C.P.C. 4. After considering the rival pleas, the court below passed the impugned order, withdrawing the permission granted earlier to sue as an indigent person, on a finding that the petitioner had wilfully concealed the funds and on the date of consideration of the present application, he ## **O.P.(C) No.566 of 2016 5** has sufficient means to pay the required court fee. The legality and propriety of the findings, whereby the court below withdrew the permission granted earlier, are impugned in this O.P.(C). 5. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent. 6. The learned counsel for the petitioner advanced arguments challenging the _locus standi_ of the 2[nd] respondent to file an application again under Rule 9 of Order XXXIII of the C.P.C. The learned counsel submits that the 2[nd] defendant was set _ex parte_ in the earlier proceedings by which, permission was granted to sue as an indigent person. Therefore, such a person, who failed to appear before the court to oppose the application, seeking permission, has no right to file an application under Rule 9 seeking withdrawal of permission granted earlier. It is also contended that, even though the 1[st] defendant had opposed the application, seeking permission, the trial court rejected his objection and granted permission. Eventhough the 1[st] defendant had ## **O.P.(C) No.566 of 2016 6** challenged the said permission before this Court, this Court also upheld the order granting permission. Further, it is contended that the application under Rule 9 of Order XXXIII of the C.P.C. is maintainable only if indigent person has acquired assets, after granting permission to him to sue as an indigent person and the assets which he had possessed earlier, at the time of getting permission, cannot be taken in to consideration in an application under Rule 9 of Order XXXIII of the C.P.C. 7. In the instant case, the documents produced by the 1[st] respondent relates to the receipt of amounts in a period prior to the granting of permission and subsequent to the granting of permission. In support of the above arguments, the learned counsel for the petitioner cited the decisions reported in **Suresh Chandra Pradhan v. Ganesh Chandra De & Ors. AIR (38)1951 Orissa 351 & Urmila Devi v. State of U.P. 2015(3) KLT SN 111.** 8. Per contra, the learned counsel for the 1[st] respondent advanced arguments, in support of the findings in the impugned order, withdrawing the grant of ## **O.P.(C) No.566 of 2016 7** permission. The learned counsel drew my attention to 17 documents, which are marked as Exts.R1(b) to R1(w) and contended that the petitioner himself admitted the receipt of sufficient amount to pay the court fee of Rs.2,18,000/-. The learned counsel further contended that the bank transactions, which are evidenced by Exts.R1(c), R1(d) and R1(e) would show that he was in possession of sufficient amount at the time of filing the application. Further Exts.R1(b) shows that the petitioner is a money lender, against whom, an FIR was registered by the police alleging the offence under the Money Lenders Act. 9. The learned counsel further specifically pointed out Ext.R1(o) order and submits that on 20.09.2012 the Kerala State Human Rights Commission passed the said order directing the Government to pay Rs.50,000/- as compensation to the petitioner, as damages, within three months from the date of order and the petitioner also has admitted the receipt of the said amount. So, at the time of adducing evidence in the application seeking permission to sue, as indigent person, the petitioner was ## **O.P.(C) No.566 of 2016 8** in possession of the said amount of Rs.50,000/-; but the same was not disclosed in the affidavit filed, along with the application seeking permission to sue as an indigent person and that amounts to wilful concealment of assets. 10. I have given anxious consideration to the rival submissions made at the Bar. In view of these submissions, at the Bar, the points to be considered is; a)whether defendant, who was set _ex parte_ in the earlier proceedings granting permission, has the right to file a petition again seeking withdrawal of the permission, under Rule 9 of Order XXXIII of the C.P.C. b)whether the scope and extent of enquiry in an application under Rule 9 of Order XXXIII of the C.P.C. is confined to the subsequent acquisition of assets, after granting of permission only. 11. The points to be considered above centers around Rule 9 of Order XXXIII of the C.P.C., which is extracted below; “ **Withdrawal of permission to sue as an indigent person** - The Court may, on the application of the defendant, or of the Government pleader, of ## **O.P.(C) No.566 of 2016 9** which seven days clear notice in writing has been given to the plaintiff, [order that the permission granted to the plaintiff to sue as (an indigent person) be withdrawn] a) if he is guilty of vexatious or improper conduct in the course of the suit; b) if it appears that his means are such that he ought not to continue to sue as an [indigent person]; or c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject -matter.” 12. Since the first question relates to _locus standi_ and maintainability of the petition, Rule 5 of Order XXXIII of the C.P.C. also needs to be considered as the 2[nd] defendant was a party in that proceedings and he was set _ex parte_ in the proceedings earlier. On a combined reading of Rule 5 and Rule 9 of Order XXXIII, it could be seen that Rule 5 and Rule 9 are independent proceedings, which are not related to each other. A person, who has opposed the earlier application, seeking permission to sue as indigent person, and got failed, is also not barred from filing an application under Rule 9 to withdraw the permission granted earlier, if he satisfies the requirements ## **O.P.(C) No.566 of 2016 10** which are provided under sub rule (a) to (c) of Rule 9 of the C.P.C. 13. The grounds for withdrawing the permission granted earlier are enumerated under clauses (a) to (c) of Rule 9 of Order XXXIII of the C.P.C. and the defendant, who satisfies the said grounds, are entitled to succeed in an application filed under Rule 9 of Order XXXIII of the C.P.C. Similarly, in the case of a defendant, who failed to appear before the court to oppose the application, filed by the plaintiff under Section 3 of Order XXXIII, seeking permission to sue as an indigent person, is also not debarred from filing an application under Rule 9 of Order XXXIII of the C.P.C., seeking withdrawal of permission granted earlier, after setting him _ex parte_ . 14. In the absence of specific provisions barring the persons aforesaid, who failed in the earlier proceedings and who was set as _ex parte_ in the earlier proceedings, I am of the view that the 2[nd] defendant has _locus standi_ to file an application under Rule 9 of Order XXXIII of the C.P.C., if he has sufficient grounds enumerated under sub- ## **O.P.(C) No.566 of 2016 11** clauses (a) to (c) of Rule 9 of the C.P.C. 15. As regards the second point, in the instant case, the 1[st] respondent has no case that the petitioner is guilty of vexatious or improper conduct in the course of the suit or he has entered into any agreement, with reference to the subject matter of the suit, under which any other person has obtained an interest in such subject matter; but, it is his case that his means are such that he ought not to continue to sue as an indigent person. 16. On an analysis of clause (b) of Rule 9 of the C.P.C., this Court is of the view that whether the indigent person has acquired the assets before or after granting permission to sue as an indigent person need not be considered, while considering the application for withdrawal, under Rule 9 of the C.P.C. What is required to be considered is, whether the indigent person has means on the date of consideration of the application, seeking withdrawal. I am of the view that the scope and extent of enquiry under Rule 9 of Order XXXIII of the C.P.C. are not confined to acquisition of assets, after granting of ## **O.P.(C) No.566 of 2016 12** permission. On the other hand, I am of the view that the assets, which were wilfully concealed, at the time when permission was granted and brought to the notice of the court subsequent to the grant of permission, also will come within the consideration of sub-rule (b) of Rule 9 of the C.P.C. The indigent person, who has successfully concealed the assets, which he had possessed, at the time when he obtained the permission, would also fall under sub-rule (b) of Rule 9 of Order XXXIII of the C.P.C. Therefore, I rejected the contention that almost all assets disclosed by the documents produced by the 2[nd] defendant relate to the period, before granting of permission and I am of the view that those assets can also be taken into consideration in an application under Rule 9 of Order XXXIII of the C.P.C. The decisions cited by the learned counsel for the petitioner do not render any aid or assistance to resolve the question, in controversy, involved in this case, as the issues are different and distinct. 17. In the instant case, the petitioner had not denied ## **O.P.(C) No.566 of 2016 13** the transactions evidenced by the 17 documents, produced by the 1[st] respondent. The documents, disclosing financial transactions of the petitioner, are certified copies and the petitioner has not produced any evidence to show that eventhough he has received such amounts, he was not in possession of those amounts, at the time when he filed an application seeking permission or at the time of consideration of the present application. Going by para-4 of the counter statement filed by the petitioner, the petitioner himself admitted that he had received Rs.2,10,000/- in the months of July and August 2014. Similarly, he had admitted that he had received Rs.50,000/- pursuant to the order passed by the Kerala State Human Rights Commission. But, going by Ext.R1(o), it could be seen that the order was passed on 20.09.2012 directing the Government to grant Rs.50,000/- as compensation to the petitioner, within 3 months, and the evidence was adduced in the year 2013. 18. As per Explanation-II of Order XXXIII of the CPC, any property which is acquired by a person, after the ## **O.P.(C) No.566 of 2016 14** presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. If Ext.R1(o) order is taken, at its face value, it could be seen that the petitioner had received Rs.50,000/before passing of order granting permission to the petitioner to sue as an indigent person. Thus, the admitted amount would come more than Rs.2,60,000/-. An amount of Rs.2,18,000/- is required for paying the court fee. If these amounts alone are taken into consideration, it could be seen that the petitioner is in possession of excess amount, after paying the court fee. In the above view of the matter, I find that there is no illegality or impropriety in the impugned order under challenge and this O.P. (Civil) will stand dismissed. STK Sd/- **K. HARILAL JUDGE** //TRUE COPY// //P.A. TO JUDGE//