IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 262 of 2006()
1. JOHNSON, AGED 44 YEARS,
... Petitioner
Vs
1. OUSEPH, AGED 66 YEARS,
... Respondent
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent : No Appearance
The Hon'ble MR. Justice M.RAMACHANDRAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated :09/11/2006
O R D E R
(M.RAMACHANDRAN & K.T.SANKARAN, JJ)
-------------------------------------------------------------
F.A.O.No.262 of 2006
--------------------------------------------------------------
Dated this the 9th day of November, 2006
JUDGMENT
Sankaran, J:
This appeal is filed against the order dated
25-08-2006 refusing leave to file the suit as an indigent
person. The appellant/plaintiff instituted the suit against
his father for realisation of money. The court fee payable
in the suit is Rs.29, 750/-. The contention of the appellant is
that he has no property or income except the properties
shown in the schedule to the application for leave to file the
suit as an indigent person. Item No.1 in the C schedule is
his residential property and item No.2 of C schedule is the
property assigned to the appellant by his father. The B
schedule properties are the movables belonging to the
appellant. He contended that except those mentioned in B
and C schedule, he has no other properties, assets or
income.
2. The respondent contended that the appellant is a
person having sufficient means to pay the court fee. A
[FAO No.262 of 2006] -2-
commission was taken out to disprove the contentions raised
by the appellant. The Commissioner filed Ext.C1 report. The
report of the Commissioner shows that the house of the
appellant is having an area of 1200 Sq.feet. There is a cattle
shed, in which 7 cattle could be accommodated. The
Commissioner had seen 4 cows in the cattle shed. The
Commissioner has also reported that in the house belonging
to the appellant he saw a Television set, Tape recorder,
Sewing Machine, V.C.D, Fridge, Heater, Fan etc. There is a
motor shed in the properties belonging to the appellant and
there is electric connection as well.
3. The court below disbelieved the evidence of the
appellant as PW1, and held that no attempt was made by the
appellant to assail the Comissioner’s report and to set aside
the same. A contention was raised that the Commissioner had
inspected some other property and not the property
belonging to the appellant. This belated contention was
negatived by the court below. The house was shown to the
Commissioner by the father of the appellant. The court
below has noticed that if the property inspected by the
[FAO No.262 of 2006] -3-
Commissioner is not owned by the appellant, an application
could be filed by the appellant directing the Commissioner
to visit the correct place, but that was not done by the
appellant. The appellant admitted in evidence that the
movables found by the Commissioner are kept in his own
house. The Court below concluded that the evidence of PW1,
when considered along with Ext.C1 report, would prove that
the appellant has sufficient means to pay the court fee.
4. The learned counsel for the appellant had also
raised a contention that the properties mentioned in the
schedule to the application filed for permission to file the
present suit as an indigent person is the subject matter of
O.S.No.2138 of 2004 on the file of the Munsiff’s Court,
Irinjalakuda, filed against the appellant by his father. The
contention is that under Order XXXIII Rule 1 of the Code of
Civil Procedure, for the purpose of assessing the means of the
plaintiff to pay the court fee, the subject matter of
O.S.No.2138 of 2004 is to be excluded. Counsel relies on
Explanation 1 to Rule 1 of Order XXXIII, which provides that a
person is an indigent person, if he is not possessed of
[FAO No.262 of 2006] -4-
sufficient means (other than property exempt from
attachment in execution of a decree and the subject matter of
the suit) to enable him to pay the fee prescribed by law for
the plaint in such suit. Laying emphasis on the words ‘the
subject matter of the suit’ the counsel contends that even if
the property is the subject matter of another suit, the value of
that property cannot be taken into account for assessing the
means of the plaintiff. The words employed in Explanation 1
to Rule 1 of Order XXXIII are “the subject matter of the suit”
and not subject matter of “a suit” or “any suit”. The only
irresistible conclusion that could be arrived at is that the
value of a property could be excluded from the purview of
assessment of the means of the plaintiff only if the property is
the subject matter of that suit itself. Even if the property is
the subject matter of another suit, that is not a ground to
exclude it from the purview of Rule 1 of Order XXXIII or to
exclude it from valuation so as to assess the indigency or
otherwise of the plaintiff. Only when the property in
question is the subject matter of the same suit filed by the
indigent person, such property could be excluded as provided
[FAO No.262 of 2006] -5-
in Explanation 1 to Rule 1 of Order XXXIII of the Code of Civil
Procedure.
5. The contentions raised by the appellant are devoid
of merit. The appeal is accordingly dismissed.
6. Learned counsel for the appellant prays for a
reasonable time to enable the appellant to pay the court fee.
It is only just and reasonable to grant one month’s time to the
appellant to pay the court fee.
(M.RAMACHANDRAN)
JUDGE
(K.T.SANKARAN)
JUDGE
mks/