IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 115 of 2003()
1. SIVADASAN, S/O.CHELLAPPAN, KOTTIL
... Petitioner
Vs
1. B.ANILKUMAR, MANALIL VEEDU, MANGAD,
... Respondent
2. SANALKUMAR, OF -DO- -DO-
3. SAJI OF -DO- -DO-
4. PRABHAKUMAR OF DO. AT PRESENT RESIDING
5. BIJU, MANALIL VEEDU, MANGAD.
6. SHIBI OF -DO- -DO-
7. SANTHOSHKUMAR, THAMARA CHALIL,
8. VIJAYAN, CIRCLE INSPECTOR OF POLICE,
9. VINAYACHANDRAN, SUB INSPECTOR OF
10. DISTRICT COLLECTOR, KOLLAM.
11. D.K.B - BABU, LORRY DRIVER,
12. RAJU K.R.E. 1133 LORRY DRIVER,
13. BABU PILLAI, DRIVER OF KL.2/A 2-3085,
14. ILLIAS, SANUJA MANZIL, T.K.M.COLLEGE P.O
15. L.VIJAYAKUMAR, VIJAYA BHAVANAM,
16. ANANDAN VADAKKADOM, MANGAD PO.
17. RAJAN KONDETHU KADAPPURATHU VEEDU,
18. AJAYAN, KADATHANATHU AYYATHU VEEDU,
19. SUJATHA OF DO.
20. SADANANDAN PARASSERIL VAYALIL PUTHEN
For Petitioner :SRI.K.K.JOHN
For Respondent :SRI.B.MOHANLAL
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :10/08/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. 115/2003.
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DATED THIS, THE 10TH DAY OF AUGUST, 2009.
J U D G M E N T
Bhavadasan, J.
Aggrieved by the order dated 6.1.2003, in O.P. (Pauper) 15 of 1998
on the file of the Principal Sub Court, Kollam, the petitioner therein has
come up in appeal.
2. By the said order, the appellant’s application to sue as an indigent
person was dismissed by the court below. The suit was one for money.
The amount claimed was Rs. 3,26,250/-, with future interest. The plaintiff
had to pay a court fee of Rs. 22,772.50. It is the case of the plaintiff that he
did not have sufficient means to pay of the court fee and so he prayed that
he may be allowed to sue as an indigent person.
3. Respondents 1 to 6 and 16 opposed the petition and according to
them, the petitioner has got enough assets from which he could raise funds
to pay the court fee.
4. For the purpose of the petition, petitioner was examined as PW.1.
The court below found that the petition was defective in as much as it did
not accompany any schedule as enjoined by Order 33 Rule 2 of the Code of
F.A.O. 115/2003 2
Civil Procedure, the consequence of which is as mentioned under Order
33 Rule 5 which states inter alia that if the application is not in the form
prescribed under Order 33, Rule 2, it has to be summarily rejected. Since
the application contained no schedule as is absolutely necessary, the same
was rejected. The said order is assailed in this appeal.
5. According to the learned counsel appearing for the appellant, the
court below was not justified in dismissing the application in as much as an
application for amendment had been filed by the petitioner seeking to
incorporate the schedule, which was not considered and the court below
went on to dismiss the application without passing an order on the said
application.
6. The petitioner/appellant was examined as PW.1. It is true that the
application did not contain a schedule as enjoined under Order 33 Rule 2,
the consequence being rejection of the petition under Order 33 Rule 5. But
one can not omit to note that the petitioner/appellant had filed an
amendment petition as early as on 24.11.2002 and the order impugned was
passed only on 6.1.2003. There is nothing to indicate that the amendment
application was considered and orders passed thereon. Whether amendment
could be allowed or not is a different matter. Petitioner is certainly entitled
to have the application considered on merits. It is also stated that he has no
sufficient means to pay the court fee.
F.A.O. 115/2003 3
7. In the light of the above facts, we think that the appellant/
petitioner should be given an opportunity to incorporate the schedule and
also an opportunity to adduce further evidence in the matter.
In the result, the appeal is allowed; the impugned order is set aside
and the matter is remitted to the court below to pass fresh orders in the light
of what has been stated above.
P.R. RAMAN, JUDGE
P. BHAVADASAN, JUDGE.
KNC/-