IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 16 of 2009()
1. REMANI, D/O.KURUNGATTU SUBHADRAMMA,
... Petitioner
Vs
1. SREEDHARAN,
... Respondent
2. USHA DEVI, W/O.M.T.NARAYANANKUTTY,
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.G.UNNIKRISHNON
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :24/06/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. No. 16 of 2009
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Dated this the 24th day of June, 2009.
JUDGMENT
Bhavadasan, J,
This appeal is directed against the order in I.A. 2442 of
2005 in O.S. 1041 of 2004, by which the petitioner before the court
below sought to maintain her counter claim as informa pauperis.
Parties are hereinafter referred to as they were available before the
court below.
2. The first respondent instituted a suit against two
defendants seeking recovery of possession based on title. The
property involved was about 11 and odd cents comprised in
Sy.No.307/3 of Chittilappilly Village. The petitioner, who was the
first defendant in the suit resisted the suit and also filed a counter
claim. As per law, she had to pay a sum of Rs.68,400/- as court fee
on the counter claim. Since she was unable to pay the said amount,
she instituted I.A. 2442 of 2005 seeking permission to prosecute
the counter claim as an indigent person.
FAO. 16/2009. 2
3. The petition was resisted by the respondents. They
pointed out that she had sufficient means to pay the court fee, and that
the petitioner maintains an account in a Bank.
4. The court below found that the petitioner did maintain
an account in the Bank and that was not disclosed in the schedule
appended to the petition seeking permission to sue as informa pauperis.
Petitioner pointed out that even though she had an account in the Bank,
the money did not belong to her and therefore she did not disclose the
same. The court below relying on Order 33 Rule 2 and 5 dismissed
the petition. The said order is assailed in this appeal.
5. Learned counsel appearing for the appellant pointed out
that the court below was not justified in dismissing the petition to sue
as informa pauperis. It was pointed out that her husband was employed
outside and he was sending money to her for the maintenance of the
family. The money did not belong to her. For the said reason that the
account in the Bank was not shown in the schedule.
6. Learned counsel appearing for the respondents on the
other hand pointed out that whatever may be the case, the petitioner
FAO. 16/2009. 3
was bound to disclose the SB Account in the schedule to her petition
and since she had not done so, no interference is called for with the
order of the court below.
7. The claim of the appellant is that on a counter claim she
has to pay a sum of Rs.68,400/- as court fee. She would say that she
does not possess any means to pay the court fee. It is pointed out that
she did have an SB Account with the Bank. But her explanation is that
her husband was employed outside and he was sending money for the
maintenance of the family. The definite case of the appellant was that
the money did not belong to her and therefore she could not utilise the
amount sent by her husband for the purpose of paying court fee.
8. Going by Order 33 Rule 1 of Code of Civil Procedure, a
person is entitled to seek permission to sue as informa pauperis, if he or
she is not possessed of sufficient means which enables him or her to
pay the court fee.
9. Order 33 Rule 2 deals with the contents of the petition,
and Order 33 Rule 5 deals with grounds on which the application can
be rejected. One of the grounds is that when the petition is not framed
FAO. 16/2009. 4
as contemplated under Order 33 Rule 2 or 3 of CPC, it can be rejected.
Therefore, strictly speaking if the petitioner before the court below
does not disclose all her assets, the court has no option but to dismiss
the application.
10. However, in the case on hand, the definite stand of the
appellant is that she has no means of her own to raise funds for paying
court fee and she has an SB account only for the purpose of getting
money for the maintenance of the family. According to her the money
does not belong to her at all.
11. The above stand seems to be reasonable. However, it
needs to be noticed that it is the respondents in the petition, who has
sought to oppose the petition. In fact except when a question of
jurisdiction is considered, the respondent has no say in the matter. It is
an issue between the State and the applicant. Whatever that be, the
explanation offered by the appellant appears to be acceptable. It also
needs to be noticed that the amount of court fee payable comes to
Rs.68,400/-. The claim of the appellant that she bonafide believed that
since the amount did not belong to her, she was under the impression
FAO. 16/2009. 5
that the account need not be shown in the schedule seems to be a
reasonable explanation, even though it may not be strictly acceptable
in law.
Considering the above aspects, it is felt that the court below
was not justified in dismissing the application. Therefore this appeal is
allowed, the impugned order is set aside and the petitioner is allowed to
file the counter claim as informa pauperis subject to the condition that
the State Government is given liberty to move the court below under
Order 33 Rule 9 of the Code.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.