Kerala High Court
Abdul Sathar vs P.V. Manoj Kumar on 17 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 17TH DAY OF JUNE 2025 / 27TH JYAISHTA, 1947
FAO NO.33 OF 2025
ARISING OUT OF THE ORDER DATED 08.01.2025 IN IA
NO.193/2019 IN IOP NO.1/2019 OF SUBORDINATE JUDGE'S COURT,
KOYILANDY
APPELLANT/PETITIONER/PLAINTIFF:
ABDUL SATHAR
AGED 42 YEARS
(LICENCY MYSORE GARDEN WEDDING CENTRE,
KOYILANDY), S/O.JALALUDHEEN KUNHU, RESIDING AT
THACHIRETHUMADATHIL HOUSE, VALLIKKUNNAM VILLAGE,
ELIPPAKKULAM P.O., MAVELIKKARA, ALAPPUZHA
DISTRICT, PIN - 690503
BY ADVS.
SRI.B.KRISHNA MANI
SMT.N.V.SANDHYA
SHRI.MAHADEV M.J.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 P.V. MANOJ KUMAR
AGED 51 YEARS
S/O.KUNHANANDAN NAIR, RESIDING AT ANANDALAKSHMI
HOUSE, PANTHALAYANI AMSOM, KOTHAMANGALAM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT.,
PIN - 673305
2 FASALRASHI
AGED 29 YEARS
S/O.KHALID, RESIDING AT EDAVANA HOUSE, NOCHAD
AMSOM, VELLIYOOR DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT, PIN - 673614
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3 KOYILOTH HAMSA
AGED 52 YEARS
S/O.ABDULLA, RESIDING AT THURAYUR HOUSE, VELLYOOR
AMSOM, NOCHAD DESOM, NOCHAD P.O., KOYILANDY
TALUK, KOZHIKODE DISTRICT, PIN - 673614
4 RANJITH
S/O.CHANDRAN, RESIDING AT AMBAYAPURATH, THRIVENI,
NANMINDA AMSOM DESOM, NANMINDA P.O., KOZHIKODE
DISTRICT, PIN - 673613
5 KOTTAKAL MUHAMMED KOYA
AGED 50 YEARS
S/O.AMMUTTY HAJI, VELLIYOOR AMSOM,
NOCHAD DESOM, NOCHAD P.O. KOYILANDY TALUK,
KOZHIKODE DISTRICT, PIN - 673614
6 PEELATHOTTATHIL MUHAMMED
AGED 45 YEARS
S/O.MOIDEEN, PERAMBRA AMSOM DESOM,
KOZHIKODE DISTRICT., PIN - 673525
7 NAZEER,
AGED 46 YEARS
S/O.KUNHAHAMMED VALUR AMSOM, CHENOLI DESOM
KOYILANDY TALUK, KOZHIKODE DISTRICT,
PIN - 673525
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION ON 18.03.2025, THE COURT ON 17.06.2025 DELIVERED
THE FOLLOWING:
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C.R.
JUDGMENT
Dated this the 17th day of June, 2025 This appeal is filed challenging the order dated 08.01.2025 in I.A.No.193 of 2019 in IOP No.1 of 2019 of the Subordinate Judge's Court, Koyilandy. Appellant was the applicant in the said I.A. and petitioner in the IOP.
2. I.A.No.193 of 2019 was filed by the appellant invoking Order 33 Rule 1, 2 and 3 of the Code of Civil Procedure, seeking permission to sue as an indigent person. The said application was rejected by the Sub Court vide the impugned order holding that the same had not been framed as per the mandates of Order 33 Rule 2. The learned Sub Judge held that since the application did not contain the schedule of movable and immovable property belonging to the appellant as mandated in law, the same is fit to be rejected. The said order of the Sub Court is challenged in this FAO.
3. Heard Sri.B.Krishna Mani, Advocate, appearing for the appellant. Since the relief sought in the FAO does not impact the respondents, it is deemed not necessary to issue notice to the respondents.
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4. The learned counsel appearing for the appellant submitted that the impugned order of the Sub Court rejecting the indigent application is illegal and unsustainable. In the application seeking to file the O.S. as an indigent, the appellant had clearly stated that he has no assets other than his wearing apparel, a watch and spectacles. The total value of the same had also been stated therein as Rs.650/-. He had no other movable and immovable property and no assets whatsoever had also been specifically averred. The learned counsel also submitted that though in I.A.No.193 of 2019 filed by the appellant, he had not incorporated a schedule stating the movable and immovable property belonging to the appellant/ applicant, such a schedule stating the said details had been incorporated in IOP No.1 of 2019 filed by the appellant. It is contended that the said schedule would, in effect, satisfy the mandate of Order 33 Rule 2. The learned counsel submits that since it was patently evident that, except for the wearing apparel of the appellant, his glasses and a watch, the appellant owns no other property, either movable or immovable, to be scheduled in a petition, the court below ought to have taken note of the same and should FAO NO.33/2025 5 2025:KER:42758 not have insisted on annexing any separate schedule regarding the same in the petition. The Sub Court ought to have read the averments in the I.A. and the IOP ought to have been read as a whole and the Sub Court ought not to have rejected the indigent application in its entirety as was done in the impugned order. There is no allegation that the appellant had suppressed any aspects regarding his assets and hence non-incorporation of a schedule in the I.A. should not have been seen as grave enough to merit a rejection. The learned counsel proceeded to substantiate the contentions put forth by placing reliance on the dictum laid down in Bommineni Laxmi Devamma v. Bommineni Konappa, [1990 KHC 1596]; Subedar Anoop Chand v. Bhonrilal [ AIR 1955 Raj. 78]; Ramdas Sahu v. Ram Chandra Sahu and others [AIR 1957 Pat. 562]; State of Haryana v. Darshana Devi and others [1979 KHC 157]; A.A.Haja Muniuddian v. Indian Railways [1992 KHC 959]. The learned counsel also highlighted the procedural nature of some of the provisions of the CPC and termed Order 33 Rule 3 as falling in the said category by pointing to the dictum laid down in R.V.Dev @ R.Vasudevan Nair v. Chief Secretary, Government of FAO NO.33/2025 6 2025:KER:42758 Kerala and others [2007 (2) KHC 612]; Zolba v. Keshao and others [2008 KHC 4544]; Sambhaji and others v. Gangabai and others [2009 (1) KHC 415] and Sanadhanan Nair v. Cochin Kagaz Ltd. [2006 KHC 1635].
5. I have heard the learned counsel for the appellant in detail. I note that Order 33 Rule 1, 2 and 3 read as follows:
"1. Suits may be instituted by indigent persons.-- Subject to the following provisions, any suit may be instituted by an indigent person.
[Explanation 1.--A person is an indigent person,--
(a) If he is not possessed of 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, or
(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.
Explanation II.--Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.
Explanation III--Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. ]
2. Contents of application.--Every application for permission to sue as an [indigent person] shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
3. Presentation of application.--Notwithstanding anything contained in these rules, the application shall be FAO NO.33/2025 7 2025:KER:42758 presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person:
[Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs.]"
Rule 5 of Order 33 reads as follows:
"5. Rejection of application.--The Court shall reject an application for permission to sue as an indigent person--
(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or
(b) where the applicant is not an indigent person, or
(c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person:
[Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person.] or
(d) where his allegations do not show a cause of action, or (d1) where the suit appears to be barred by any law, or
(e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter; [or] [(f) where the allegations, made by the applicant in the application show that the suit would be barred by any law for the time being in force, or
(g) where any other person has entered into an agreement with him to finance the litigation.]"
I note that the dispute in this FAO primarily relates to that part of Order 33 Rule 2, which states that a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto to every application for FAO NO.33/2025 8 2025:KER:42758 permission to sue as an indigent person. If the same has not been so annexed, would that justify a summary rejection of such application under Order 5 ?
6. I note, as held in Bommineni Laxmi Devamma (supra), that the purpose and object of an application to sue as an indigent person is to enable poor persons to approach the court for redressal of their grievances and that poverty should not come in the way of their getting justice from the courts. The failure to comply with the requirement to show the property particulars and their estimated value cannot be treated as fatal. If at all any defect has been noted in the said respect, the proper course ought to be to permit the applicant to remedy the defect than to reject the application outright. If the application does not conform to Rules 2 and 3, an opportunity should be given to rectify the defects. Order 33 Rule 5 relates to procedure. It is only a directory and not mandatory. The application cannot be outright rejected as non-compliant with formal requirements. Mistakes may occur. In a welfare state, poverty should not come in the way of a person's right to sue. Order 33 enables an indigent person to enjoy the said right. At the same time, FAO NO.33/2025 9 2025:KER:42758 a beneficial provision like Order 33 cannot be permitted to be misused by unscrupulous litigants. Only intentional non-disclosure of assets belonging to the petitioner would be a ground for dismissing the petition. The motive for suppression is relevant, and the utmost good faith is expected of persons who seek permission to sue as an indigent. However, it is not that every case of omission is fatal and that only omission and that are indicative of lack of bona fides or good faith on the part of the applicant would be fatal. Whether the conduct of a party lacks good faith and whether the omission to mention all the properties belonging to him is a deliberate act of suppression has to be ascertained from the facts of that particular case and the surrounding circumstances. If the omission is inadvertent and capable of modification, the petition is not liable to be dismissed, and the petition can be permitted to be amended. In Subedar Anoop Chand (supra), it was held as follows :
"To my mind O. 33, R. 5 of the CPC does not take away the inherent powers of the Courts under S. 151 or their general power to allow amendment under Section 153 of the CPC. What O. 33, R. 5 of the CPC seems to lay down is that the Courts should be strict in observing the rules about the frame and presentation of applications, etc. as provided in R. 2 and 3 of that Order. This rule should be interpreted subject to the provisions laid down under Sections 151 and 153 of the CPC. This would mean that the Courts may give and they should give the applicant a chance to amend formal or mere technical defects but if FAO NO.33/2025 10 2025:KER:42758 the application is incapable of amendment or if the applicant fails to make proper amendment and persists in committing mistakes in spite of a chance being given to him, then the Court should not condone or take a light view of the defects but it must reject the application."
In Ramdas Sahu's case (supra) also, the Patna High court has taken such a liberal view and held that the petitioner ought to be given an opportunity to amend the pauper application suitable in regard to the omitted properties and thus to bring it in confirmity with Rule 2 of Order 33.
In Darshana Devi's case (supra), the Hon'ble Supreme Court has elucidated the objective of Indigent suits and extended its applicability to Tribunals. It was held as follows:
"The poor shall not be priced out of the justice market by insistence oh court fee and refusal to apply the exemptive provisions of O.33, CPC. So we are distressed that the State of Haryana, mindless of the mandate of equal justice to the indigent under the Magna Carta of our Republic, expressed in Article 14 and stressed in Article 39A of the Constitution, has sought leave to appeal against the order of the High Court which has rightly extended the 'pauper' provisions to auto accident claims. The reasoning of the High Court in holding that O33 will apply to tribunals which have the trappings of the civil court finds our approval. We affirm the decision."
Likewise, in A.A.Haja's case (supra), the Hon'ble Supreme court had extended the applicability of the provisions of Order 33 of the Code of Civil procedure to Railway Claims Tribunal Act, 1987.
7. I find merit in the contention that the court below had FAO NO.33/2025 11 2025:KER:42758 misconstrued the provisions of Order 33 of the Civil Procedure Code. The annexing of a schedule can never be termed as mandatory when it is explicit that the petitioner has set forth all the details in the affidavit filed along with the petition seeking permission to initiate a proceeding as an indigent person, as also in a schedule attached to the IOP. The court below had gone wrong in not adverting to the contents of the affidavit in I.A.No.193 of 2019 and in IOP No.1 of 2019. The court below ought to have read the statements in the affidavit as a whole, and the petitioner ought not to have been thrown out merely because he has not annexed any schedule to the I.A.
8. The petitioner owns no property to be scheduled and the court below had misconstrued the provisions of Order 33 of the CPC. It has not been found that the petitioner had suppressed anything about his assets. The non-incorporation of a schedule can never be stated to be lethal to warrant a dismissal of his petition. The application filed by the petitioner has been registered, and no objection has been raised. Petitioner had annexed a schedule to the plaint, wherein he had specifically enumerated the assets that he FAO NO.33/2025 12 2025:KER:42758 had. The schedule completely meets the mandates of Order 33 Rule
2. The said fact was overlooked by the learned Judge.
9. In view of the above, the order dated 08.01.2025 in I.A.No.193 of 2019 in IOP No.1 of 2019 of the Subordinate Judge's Court, Koyilandy is set aside. The matter is remanded back to the Subordinate Judge's Court, Koyilandy, for fresh consideration in accordance with law.
FAO is allowed.
Sd/-
SYAM KUMAR V.M. JUDGE csl