High Court Kerala High Court

Remani vs Sreedharan on 24 June, 2009

Kerala High Court
Remani vs Sreedharan on 24 June, 2009
       

  

  

 
 
  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.