IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 552 of 2008()
1. GOURI AMMA RAJAMMA, VALLYAVILA
... Petitioner
Vs
1. KRISHNAPANICKER SREEDHARA PANICKER
... Respondent
For Petitioner :SRI.V.G.ARUN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/03/2010
O R D E R
S.S.SATHEESACHANDRAN, J
-------------------------------------
C.R.P Nos.552 OF 2008
AND 161 OF 2006
--------------------------------
Dated this the 8th day of March 2010
ORDER
Revision is directed against the dismissal of an application
moved by the petitioner to sue as an indigent person to claim the
relief of declaration of title over the suit property and in the
alternative, for compensation from the defendants. The impugned
order shows that this was the 4th revision arising from orders passed
by the trial court in an application moved for permission to sue as an
indigent person. In all the three previous occasions, the revisions
had been filed by the contesting respondents against the allowing of
the application and this court had allowed such revisions remitting
the case for fresh consideration. After the last remission under C.R.P
No.161 of 2006 by order dated 24.08.2006, the impugned order had
been passed by the court below dismissing the application of the
revision petitioner. Propriety and correctness of that order is
challenged in the revision.
2. I heard the learned counsel for the revision petitioner.
Perusing the impugned order, it is seen, the case canvassed by the
petitioner that she had no means to pay the court fee payable on the
suit claim was accepted. Her claim to sue as an indigent person was
however dismissed for the reason that her claim is barred by
C.R.P Nos.552 OF 2008
AND 161 OF 2006 Page numbers
Order 2 Rule 2 of the Code of Civil Procedure. Admittedly in respect
of the disputes involved, the parties of the proceedings had agitated
their respective claim in two earlier suits, one filed by the
respondents and the other subsequently by the present petitioner.
After the suit filed by the respondents as plaintiffs was decreed
allowing recovery of possession of the property scheduled in the
present case as well from the defendants/petitioners, the petitioner
instituted a suit seeking declaration of her right over that property.
That suit was dismissed. Thereafter she filed the present suit with
the application seeking permission to prosecute the suit as an
indigent person. Her claim is barred by resjudicata as the parties
have been litigating under the same title in respect of the same
matter involved and, further, the relief canvassed in the present suit
is also barred under Order 2 Rule 2 of the Code of Civil Procedure
were the objections raised by the contesting respondents. During
the course of the enquiry in the application seeking permission to
sue as an indigent person, petitioner gave up her claim for the main
relief canvassed, declaration of title over the suit property,
conceding that it cannot be agitated upon in view of the binding
decision rendered in the previous suit. However, she sought
permission to proceed with the alternate relief canvassed, that is, to
claim compensation from the respondents, that too relating to the
subject matter involving the property described in the suit. There
C.R.P Nos.552 OF 2008
AND 161 OF 2006 Page numbers
was some mistake in describing that suit property conveyed by the
predecessor of the contesting respondents to the husband of the
plaintiff was the basis for claiming the compensation. The learned
Sub Judge after examining the materials produced found that such a
relief if at all available should have been canvassed by the plaintiff
when she had instituted a suit for declaration of her title. Even if she
had set up such a claim as well in her previous suit whether it could
have been entertained or decided in her favour is a moot question in
the light of the early decree passed in favour of the respondents
allowing recovery of possession of the same property. The question
that emerge for consideration is whether the case canvassed by the
petitioner to claim compensation at this point of time as an alternate
relief in the present suit is entertainable after she had been worsted
in two earlier proceedings. View taken by the court below under
Section not entertainable appears to be proper and correct. On the
facts and circumstances presented in the case, I find no interference
with the order passed by the learned Sub Judge dismissing the
application of the plaintiff to sue as an indigent person arise for
consideration. Revision is dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//TRUE COPY//
vdv P.A TO JUDGE