Umaiba Beevi v. P.T. Varghese

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 OP(C) NO. 1501 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 414/2014 OF MUNSIFF COURT, PUNALUR,** **KOLLAM** ## **PETITIONER/S:** **UMAIBA BEEVI, AGED 67 YEARS W/O. ISMAIL, MUNDAIKAL VADAKKETHIL, NADUKUNNU MURI, PATHANAPURAM VILLAGE, PATHANAPURAM TALUK, KOLLAM.** **BY ADVS. K.SHAJ BINDU N.RAJAN C.IJLAL JOSEPH MARY DAS BHARAT VIJAY P. MAJID MUHAMMED K. ANANDU R. VINAYAK G MENON RESHMA.P. JOSSY S. KATTUR UMMUL FIDA** ## **RESPONDENT/S:** **P.T.VARGHESE, AGED 56 YEARS, S/O. THOMAS, ANU BHAVAN, PIDAVOOR MURI, PIDAVOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.** **BY ADVS. S.K.DEVI SANTHOSH P.ABRAHAM** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) NO. 1501 OF 2021** **2** ## **JUDGMENT** The petitioner is the judgment debtor in E.P.No.11 of 2017 in O.S.No.414 of 2014 pending on the files of the Munsiff Court, Punalur. Challenging the judgment and decree, the petitioner had preferred an indigent appeal before the Sub Court, Punalur. The appeal was initially dismissed finding that the petitioner had failed to disclose her entire assets. Aggrieved, the petitioner preferred F.A.O No.91 of 2018 before this Court and by Ext.P4 judgment, the impugned order was set aside and the court below directed to decide the matter afresh after calling for a report from the District Collector and affording opportunity to the petitioner to adduce evidence. Thereafter, when the matter came up for consideration before the Sub Court, the petitioner was absent and was not represented. Thereupon, the Sub Court, dismissed the original petition vide Ext.P5 order, finding no need to proceed with the matter, as the petitioner was not interested. **3** ## **OP(C) NO. 1501 OF 2021** 2. The petitioner filed I.A.No.2 of 2021 seeking restoration of the original petition along with an application for condonation of delay of 885 days and the same is pending consideration. In the meanwhile, the execution proceeded with sale of the petitioner's property and the property was purchased by a third party. All that remains is for the sale to be confirmed. Therefore, petitioner is constrained to file this original petition challenging Ext.P5 order, dismissing the appeal sought to be filed as indigent person. 3. Learned Counsel for the petitioner contended that an application to sue as indigent person cannot be dismissed for non-prosecution and the rejection can only be for the reasons stated in Order 33 Rule 5. In support of the contention, reliance is placed on the decision of this Court in Alex.A.Varghese v. KSEB [2010 (3) KLT 534]. 4. Learned Counsel for the respondent submitted that **OP(C) NO. 1501 OF 2021** **4** sufficient opportunity had been given and the petitioner had deliberately kept away from the court, after knowing that the the District Collector's report was not in her favour. Moreover, even in the execution proceedings, sale notice had to be affixed at the petitioner's residence. Hence, the court below was justified in finding that the petitioner was not interested in prosecuting the indigent petition. 5. I find merit in the submission of the learned Counsel for the respondent that the conduct of the petitioner resulted in Ext.P5 order. At the same time, as per Order 33 Rule 5 dismissal of an indigent petition can only be for the reasons stated therein. This view is supported by the decision of this Court in Alex.V.Varghese (Supra), the relevant portion of which is extracted hereunder; 6. The court can reject an application on grounds enumerated in R.5. After the enquiry and hearing in terms of R.7, the court shall either allow or refuse to allow the **OP(C) NO. 1501 OF 2021** **5** applicant to sue as an indigent person. In terms of that rule, the application is entitled to tender evidence, including by the examination of witnesses. The court has to hear arguments which the parties may decide to offer on the question for decision. An order rejecting or refusing the application can be challenged before the superior courts. Not only that, it being an order adverse to the interest of the person who made the application, he is entitled to know the reasons for the rejection or refusal. Therefore, the court is bound to accord reasons for its decision in that regard. Hence, when an application to sue as an indigent is filed, the court has to necessarily go into the issue regarding the alleged indigence and decide on that issue. Without that point being decided, it would be a case of non-exercise of jurisdiction if the application to sue as an indigent is rejected, even if such rejection is made on account of the fact that the case stood posted with an order of no further time for payment of the balance court fee” 6. It is assured by the learned Counsel for the petitioner that there will not be any further default and the petitioner will prosecute the indigent petition diligently. Even then, I am of the opinion that the prejudice caused to **OP(C) NO. 1501 OF 2021** **6** the respondent should be compensated by payment of cost. In the result, the Original Petition is allowed as under; (i) Ext.P5 order is set aside. (ii) The Sub Court, Punalur shall reconsider O.P.(Indigent) No.2 of 2016 and pass orders thereon within an outer limit of two months of the receipt of a copy of this judgment. (iii) The further proceeding in E.P.No.11 of 2017 in O.S.No.414 of 2014 on the files of the Munsiff Court, Punalur shall be kept on hold for the said period of two months. (iv) The above directions are subject to the condition that the petitioner pays an amount of Rs.10,000/- (Rupees Ten Thousand Only) to the respondent through his Counsel in the High Court, **OP(C) NO. 1501 OF 2021** **7** within a period of two weeks from the date of receipt of a copy of this judgment. (v) The parties shall appear before the lower court on 16.11.2021. **Sd/V.G.ARUN JUDGE** RK **OP(C) NO. 1501 OF 2021** **8** ## **APPENDIX OF OP(C) 1501/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 THE TRUE COPY OF JUDGMENT DATED 28.07.2016 IN O.S. NO. 414/2014 OF THE MUNSIFF'S COURT, PUNALUR.** **Exhibit P2 THE TRUE COPY OF THE UNNUMBERED APPEAL SUIT FILED BEFORE THE SUB COURT, PUNALUR BY THE PETITIONER.** **Exhibit P3 THE TRUE COPY OF THE INTERLOCUTORY APPLICATION IN UNNUMBERED APPEAL SUIT FILED BEFORE THE SUB COURT, PUNALUR BY THE PETITIONER NUMBERED AS O.P. (IND) NO. 2/2016.** **Exhibit P4 THE TRUE COPY OF JUDGMENT DATED 06.09.2018 IN FAO NO. 91/2018 PASSED BY THIS HON'BLE COURT.** **Exhibit P5 THE TRUE COPY OF ORDER DATED 28.02.2019 IN O.P (IND) NO. 2/2016 PASSED BY THE SUB COURT, PUNALUR.** **Exhibit P6 THE TRUE COPY OF I.A. NO. 1/2021 IN O.P. (IND) NO. 2/2016 FILED BY THE PETITIONER BEFORE THE SUB COURT, PUNALUR FOR RESTORATION OF THE INDIGENT PETITION.** - **Exhibit P7 THE TRUE COPY OF I.A. NO. 1/2021 IN O.P. (IND) NO. 2/2016 FILED BY THE PETITIONER BEFORE THE SUB COURT, PUNALUR, FOR CONDONATION OF DELAY.** **Exhibit P8** **THE TRUE COPY OF E.P. NO. 11/2017 IN O.S. NO. 414/2014 FILED BY THE RESPONDENT** **9** ## **OP(C) NO. 1501 OF 2021** **BEFORE THE MUNSIFF'S COURT, PUNALUR.**