Visalakshi v. Thomas and Ratheesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944 F.A.O.NO. 29 OF 2022** **AGAINST THE ORDER DATED 22.01.2022 IN POP(INDIGENT) NO.7 OF 2019 OF THE PRINCIPAL SUB COURT, THRISSUR** ## **APPELLANT/PETITIONER:** **VISALAKSHI,** **AGED 69 YEARS, W/O LATE PALLIYIL RAVINDRAN, OLLUR VILLAGE, VALARKAVU DESOM, VALARKAVU P O, THRISSUR THALUK, TRISSUR-680006.** **BY ADVS. PREMCHAND M. K.ANITHA JOHN VINAYA V.NAIR** ## **RESPONDENTS/RESPONDENTS:** **1 THOMAS, AGED 47 YEARS, S/O MALIAKKAL OUSEPH, MALIAKKAL HOUSE, VELUR VILLAGE, NADUTHURUTHU DESOM, MUKUNDAPURAM THALUK, PO THRISSUR-680683.** - **2 RATHEESH,** **AGED 41 YEARS, S/O ERATTUPARAMBIL VEETTIL IBRAHIM KUTTY, ERATTUPARAMBIL VEETIL, THEKKUKARA VILLAGE, MUKUNDAPURAM THALUK, THRISSUR-680683.** **BY ADV RAJIT** 2 F.A.O.No.29 of 2022 **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 25.08.2022, THE COURT ON 31.08.2022 DELIVERED THE FOLLOWING:** 3 F.A.O.No.29 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner-plaintiff in P.O.P.(Indigent) No.7 of 2019 on the file of the Principal Sub Court, Thrissur is the appellant. As per the order dated 22.01.2022, the prayer of the appellant to sue as an indigent person was declined. The said order is under challenge in this appeal filed under Section 104, read with Order XLIII, Rule 1(na) of the Code of Civil Procedure, 1908. 2. On 23.02.2022, this appeal was admitted to file and notice was directed to be served on the respondent. Proceedings in P.O.P.(Indigent) No.7 of 2019 was stayed for a period of one month. The order has been extended from time to time. 3. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondents and also the learned Government Pleader. 4. The contentions of the appellant were that she was not able to pay the court fees of Rs.7,57,600/-, since the 4 F.A.O.No.29 of 2022 income she has been deriving from his available sources was totally insufficient. Initially, she stated that she did not have any income and had been depending her relatives to meet her day-to-day expenses. The only property she claimed to have was plaint B-Schedule property. Later, she added the averments by filing I.A.No.1 of 2020 in P.O.P.(Indigent) No.7 of 2019 that she had been drawing monthly pension and family pension, but the same was not sufficient to pay the court fees, owing to the medical expenses and other living expenses she has to meet. 5. The 1[st] respondent has filed a counter affidavit refuting the contentions of the appellant. It was contended that Rs.30,000/- per month has been drawn by the appellant as pension, she owns 6.2 cents of property and that she received a huge amount as compensation on account of the death of her son. Therefore, she has the means to pay the court fees and the petition is liable only to be dismissed. 6. The appellant gave oral evidence as PW1 and produced Exts.A1 to A10. After considering the said evidence, 5 F.A.O.No.29 of 2022 the learned Sub Judge took the view that the appellant did have sufficient resources and that she was guilty of suppression, entailing dismissal of the petition. The appellant did not disclose her monthly pension and family pension in the petition, but the same was disclosed only when the 1[st] respondent pointed it out, and therefore, the suppression on the part of the appellant affects her bona fides. It was also observed that the appellant could raise funds by selling the property she owns and there is nothing on record to show that the pensionary benefits and the compensation amount she received on account of the death of her son are not with her. Relying on various decisions of this Court and also the Apex Court, the court below concluded that the appellant is not an indigent as described in Order XXXIII, Rule 1 of the Code and accordingly dismissed the Original Petition. 7. In order to ascertain the assets and resources of the appellant, a report from the District Collector, Thrissur, was called for. The report states as follows:- “Detailed enquiry was conducted regarding the matter. 6 F.A.O.No.29 of 2022 The complainant named Smt.Vishalakshi (w/o late Palliyil Raveendran, Valarkkavu Desom, Ollur) is a retired Nursing Assistant, and now she is residing in Ollur Village. On local enquiry it is revealed that the complainant is suffering from heart disease. Her husband Sri.Raveendran was a retired Village Officer and passed away in an accident. Complainant has two sons named Ratheesh and Sudheesh. The younger one Ratheesh passed away 9 years ago in an accident. Currently the complaint is living along with her elder son Sudheesh and his family who is an auto driver. An extent of 2.41 Ares (5.9774 cent) land in re-survey No.19/64 of Ollur Village was in the name of Smt.Vishalakshi. The land was transferred to Sri.Thomas, S/o Maliyekkal Ouseph, Meloor Village, Chalakkudy Taluk, vide document No.4483/12 dated 20.11.2022. Now the land is in the name of Sri.Thomas. Land tax for the above land has been remitted by the party for the financial year 2021-22. Complainant Smt.Vishalakshi is currently residing in the same small house numbered 602/1 from Thrissur Corporation in the same property.” 8. The report also contains details of income derived by the appellant and also his elder son. As per the statement, the appellant is getting an annual income of Rs.3,12,000/- 7 ## F.A.O.No.29 of 2022 and her elder son gets Rs.48,000/- yearly. Also, it is stated that the appellant did not involve in any transaction in the recent past. 9. It is no doubt, if the person seeks leave to sue as indigent suppresses any material fact, which has some bearing on the question in dispute, it disentitles him to get the leave. 10. The learned counsel appearing for the respondents contended that the appellant approached the court not with bona fides, and therefore, her application for permission to sue as indigent was rightly rejected. In **Mathew v. State of Kerala [1996 (2) KLT 363], Mini James v. T.I.George and others [2018 (5) KHC 744]** , this Court held that if the applicant suppressed any fact which has a bearing on the question regarding his indigency, the petition entails rejection. In **Mathew** (supra) it was held that when an applicant does not disclose an asset held by him in his application, whatever be the reason, on the wording of Rule 3 of Order XXXIII of the Code, it is clear that 8 F.A.O.No.29 of 2022 the application is liable to be rejected, in terms of Rule 5A of Order XXXIII. Thus, the law on the point is that any suppression of material fact by the applicant will tell upon his bona fides and for that reason his application is liable to be rejected. During the course of arguments, the learned counsel appearing for the respondents pointed out that the appellant maintains bank accounts, but full details of the accounts are not furnished before the court. The appellant also failed to furnish the details of the pensionery benefit and compensation on account of the death of her son, she had obtained. The question is whether suppression of such facts would necessarily result in disallowing the application. 11. Going by the decision of this Court in **Mathew** and **Mini James** referred to supra, suppression of the assets held by the applicant, even if there is justification, would tell upon the bona fides of the applicant. If a material fact having bearing on the bonafides of the applicant is suppressed also the application entails rejection. 9 F.A.O.No.29 of 2022 12. The appellant did not disclose the details of her monthly pension and family pension while filing the original petition. She only stated that she did not have enough income and she meets the living expenses with the help of her relatives. However, she subsequently filed I.A.No.1 of 2020 and added all the details regarding her income. This is not a case where the appellant had any dubious or clandestine dealings from which she has been deriving income. She ought to have disclosed the details of her monthly pension and family pension in the petition itself. But her failure unless it materially affects the decision in the matter, may not be a reason to discard her plea altogether. Therefore, it is required to consider her plea on merits. 13. In **Palakkil Puthiyamaliyekkal Abdul Razak v. P.K.Saleem [2018 (5) KHC 336]** , a Division Bench of this Court after referring to the principle laid down in **Mathai M.Paikeday v. C.K.Antony [(2011) 13 SCC 174]** held that, “12. xx xx xx All the factors such as person's employment status and the total income, including retirement benefits in the form of pension, ownership of 10 F.A.O.No.29 of 2022 realisable unencumbered assets and person's total indebtedness and financial assistance received from the family member or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee. Therefore, the expression 'sufficient means' in Order XXXIII, Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee. The factors particularly relevant to the determination of whether a party to a civil proceedings is indigent are: (1) the party's employment status and income, including income from government sources, such as social security and unemployment benefits; (2) the ownership of any unencumbered assets, including real or personal property and monies on deposit; and finally (3) the party's total indebtedness and any financial assistance received from family or close friends. Where two people are living together and functioning as a single economic unit, whether married, related, or otherwise, consideration of their combined financial assets may be warranted for the purpose of determining a party's indigency status in a civil proceedings.” 14. In **Jagadamma v. Sheela and another [2021** **(3) KLT 347]** another Division Bench of this Court explained 11 F.A.O.No.29 of 2022 what shall be the criteria for deciding the question of sufficient means,- “22. The expression "sufficient means" occurring in Order XXXIII R.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.” ## 15. In **Paulose @ Paulo v. Elias K.Varghese and** **another [2012 (1) KHC 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 means', i.e. “means” sufficient to pay court fee after meeting the basic requirements of life. Total destitution 12 F.A.O.No.29 of 2022 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 expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only 13 F.A.O.No.29 of 2022 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.” 16. The law that flows from the aforesaid decisions is that a person need not be in abject poverty or penury for getting permission to sue as an indigent person. What is to be shown before the court is that he is a person not able to raise enough funds for making payment of the court fees in the present circumstances. 17. Keeping that in mind, we may consider the facts in this case as are borne out from the materials on record. 18. The appellant deposed before the court regarding her miseries in her life. It is evident from the report submitted by the District Collector, Thrissur also the said facts. Her younger son died nine years ago. She, at the time of filing of the Original Petition, was aged 69 years. It shows that she retired from service more than 12 years ago. She deposed 14 F.A.O.No.29 of 2022 that she had to undergo continuous treatment and her elder son, who along with his family, is residing with her has no employment. 19. Taking into account the time when she would have received the pensionary benefits and compensation on account of the death of her younger son, and the expenses she would have to meet in connection with the treatment and other necessities in life, it may not be correct to say that she has with her the aforesaid amounts she had received. It is true that she did not state in many words how she spent such amounts. But her present situation speaks for itself. She is a retired Government servant. She is living in a small house along with her unemployed son and his family. She instituted the suit in question with the allegation that her property was deceptively got transferred by the respondents. Taking all such aspects into account, we are of the view that although the appellant cannot be said to be a person living in abject poverty, she certainly is a person having no sufficient means, at present, to make payment of the court fees. In the 15 ## F.A.O.No.29 of 2022 circumstances, we are of the view that the impugned order is liable to be set aside. 20. Hence, the appeal is allowed. The order dated 22.01.2022 in P.O.P.(Indigent) No.7 of 2009 before the Principal Sub Court, Thrissur, is set aside. Permission is granted to the appellant to sue as an indigent in P.O.P. (Indigent) No.7 of 2019. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr