Kerala High Court
Thachireth Matathil Abdul Sathar vs Manoj Kumar on 19 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA,
1943
OP(C) NO. 1942 OF 2021
AGAINST THE JUDGMENT IN AS 31/2019 OF SUB COURT,
KOYILANDY
OS 145/2016 OF MUNSIFF'S COURT, KOYILANDY
PETITIONER/APPELLANT :
THACHIRETH MATATHIL ABDUL SATHAR,
S/O. JALALUDEEN, AGED 42 YEARS,
SWASTHAM THACHIRETHMADOM,
VALLIKKUNNAM VILLAGE,
ILIPPAKULAM P. O., MAVELIKARA,
ALAPPUZHA.
BY ADVS.
B.KRISHNA MANI
DHANUJA M.S
SIJU RAJAN
RESPONDENTS/RESPONDENTS :
1 MANOJ KUMAR,
AGED 53 YEARS,
S/O.KUNHANANTHAN NAIR,
RESIDING AT 'ANANTHALAKSHMI',
PANTHALAYANI VILLAGE,
KOTHAMANGALAM DESOM,
KOYILANDY TALUK - 673 305.
2 EDAVANA FAZAL RAZI,
AGED 31 YEARS,
S/O. KHALID,
NOCHAD AMSOM,
VALLIYUR DESOM,
KOYILANDY TALUK - 673614.
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3 KOYILOTH HAMSA,
AGED 54 YEARS, S/O. ABDULLA,
THURAYUR HOUSE, NOCHAD P.O.,
NOACHAD AMSOM, VALLIYUR DESOM,
KOYILANDY TALUK - 673614.
4 RANJITH, S/O. CHANDRAN,
RESIDING AT TRIVENI, AMBAYYAURATH,
NANMANDA AMSOM, DESOM,
KOZHIKODE TALUK - 673613.
5 KODAKKAL MUHAMMED KOYA,
S/O. AMMAD HAJI, NOCHAD P. O.,
NOCHAD AMSOM, VALLIYUR DESOM,
KOYILANDY TALUK - 673614.
BY ADVS.
ABIMALEK C VALSAN
M.PROMODH KUMAR
MAYA CHANDRAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.1942 of 2021 ..3..
"C.R.''
O.P.(C)No.1942 of 2021
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JUDGMENT
This original petition filed under Article 227 of the
Constitution of India poses two pertinent questions;
i) Whether attachment of movables
from the house of the petitioner where he has
been residing along with family members, in
another suit, is a ground to dismiss a petition
filed under Order 44 Rule 1 of the Code of Civil
Procedure whereby the petitioner sought
permission to sue as an indigent person, after
holding that the petitioner suppressed
possession of said movables without disclosing
the same?
O.P.(C)No.1942 of 2021 ..4..
ii) Whether earning status of the spouse
and financial capacity of the parents or relatives
of the petitioner are grounds to hold that a
petitioner in an application filed under Order 44
Rule 1 of the Code of Civil Procedure as a person
having sufficient means to pay the required
court fee?
2. The petitioner/appellant, who filed Interlocutory
Application No.420 of 2019 in A.S.No.31 of 2019 under Order
44 Rule 1 of the Code of Civil Procedure to proceed with Appeal
Suit No.31 of 2019 on the file of the Sub Court, Koyilandi as an
indigent person has filed this original petition challenging
Ext.P12 order whereby the learned Sub Judge dismissed the
above application as per order dated 08.10.2021.
3. The respondents in the appeal filed counter
and opposed the status of the appellant as an indigent person.
4. After examining the petitioner as PW1, relying
on Ext.B1 inventory prepared in E.P.No.64 of 2020 showing
O.P.(C)No.1942 of 2021 ..5..
attachment of movable from the residential house of the
petitioner, the learned Sub Judge passed Ext.P12 order. The
learned Sub Judge held that as per Ext.B1 inventory, valuable
items worth Rs.1.5 lakh were attached from the house of the
petitioner, in another suit, O.S.No.145 of 2016. Further, the
learned Sub Judge observed in Ext.P12 that the wife of the
petitioner had been working in Food Corporation of India and
the parents of the petitioner were having sufficient income to
assist the petitioner. Therefore, the learned Sub Judge held
that the petitioner cannot be permitted to sue as an indigent
person.
5. When the matter is taken for hearing, it is
fairly conceded by the learned counsel for the respondents
that though some movables were attached from the building
where the petitioner has been residing, during execution
proceedings in another suit, that by itself is not a reason to
hold that the petitioner is not indigent. He conceded further
that he has no objection in setting aside the order and
O.P.(C)No.1942 of 2021 ..6..
permitting the petitioner to proceed as an indigent person so
as to have early disposal of the appeal to give a quietus to the
litigation in between the parties within a reasonable time.
6. Whereas, the learned counsel for the original
petitioner submitted that the petitioner has been residing
along with his wife and children and the wife has been
employed in Food Corporation of India. Therefore, mere
recovery of movable items from the family house by itself is
not a reason to hold that the movable properties belong to the
petitioner. Therefore, the order is illegal and required to be
interfered.
7. Going by the order, it appears that the learned
Sub Judge given much emphasis to Ext.B1 inventory to dismiss
the petition, apart from observing that the parents and wife
were having sufficient money to render assistance to the
petitioner.
8. While considering the legality of Ext.P12 order,
reference to Order 44 Rule 1 and the provisions under Order 33
O.P.(C)No.1942 of 2021 ..7..
is necessary. No doubt, Order 44 Rule 1 enables an indigent
appellant to go with an appeal without paying the required
court fee and the provisions relating to suits by indigent
persons would apply while deciding the application, insofar as
those provisions are applicable. Order 33 Rule 5 deals with
rejection of an application for permission to sue as an indigent
person. Sub Rule (b) of Rule 5 permits the Court to reject an
application when the applicant is not an indigent person. But
such a power can be exercised either by examining the
applicant or his agent, if the Court may thinks fit and recording
a finding that the petitioner has no sufficient means to pay the
required court fee. It is true that, if a person is having sufficient
means as his own, the Court can reject an application of this
nature. However, when the ownership of movables attached
from the residential house of the petitioner is the plank on
which the question of sufficient means is arrived at, proof of
ownership is absolutely necessary. It may happens sometimes
that in a dwelling house where the petitioner along with other
O.P.(C)No.1942 of 2021 ..8..
family members are residing, may have many movables
purchased by other family members also, particularly when
other earning members are also residing therein. In such
cases, without proving the ownership of the movables in a
satisfactory manner, it is not fair to dismiss an application of
this nature merely on that ground.
9. In this context, it is observed further that the
mere no objection raised by the other side also is not a ground
to allow an application of this nature as payment of court fee is
a matter in between the petitioner and the Court involving
some procedural formalities also. However, ultimately, the
Court should consider the question regarding the capability of
the petitioner on the touch stone of 'sufficient means' to pay
the required court fee independently. In the case on hand, the
ownership of the movable found in Ext.B1 is not established.
Therefore, mere recovery of some movables from the family
house of the petitioner where other family members are also
residing cannot by itself is a ground to dismiss an applicable to
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sue as an indigent person, unless it is established that the
owner of the movables is none other than the petitioner. If so,
for that reason alone application to sue as an indigent person
cannot be dismissed. Coming to the other aspect, the learned
Sub Judge considered the earning capacity of the spouse of the
petitioner and the financial capacity of the parents of the
petitioner are grounds to dismiss the petition. In fact, these
are not grounds to hold that the petitioner has 'sufficient
means' to pay the required court fee. In view of the above,
Ext.P12 order is liable to be set aside.
Accordingly, the original petition stands allowed and
resultantly, I.A.No.420 of 2019 filed by the petitioner seeking
permission to sue A.S.No.31 of 2019 as an indigent person
stands allowed. The learned Sub Judge is directed to continue
the Appeal Suit as such and dispose of the same on merits. It
is ordered further that payment of the court fee shall be
ordered after disposal of the matter in accordance with law.
As per Ext.P10 order, this Court directed the Sub
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Judge to dispose of the appeal within a period of three months.
In view of the pendency of this matter, it is difficult for the
learned Sub Judge to comply with the order and therefore,
there shall be a fresh direction to the learned Sub Judge to
hear and dispose of the matter within a period of 45 days from
the date of production or receipt of a copy of this judgment.
Registry is directed to forward a copy of this judgement within
seven days to the Sub Court.
Sd/-
A.BADHARUDEEN, JUDGE
rkj
O.P.(C)No.1942 of 2021 ..11..
APPENDIX OF OP(C) 1942/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT,
O.S.NO.145/2016 BEFORE THE MUNSIFF
COURT, KOYILANDY DATED 07.04.2016.
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT
DATED NIL IN O.S.NO.145/2016 BEFORE
THE MUNSIFF'S COURT, KOYILANDY.
Exhibit P3 TRUE COPY OF THE PROCEEDING DATED
04.07.2016 BEFORE THE HON'BLE HIGH
COURT OF MADRAS.
Exhibit P4 TRUE COPY OF THE O.S.395/2015 BEFORE
THE MUNSIFF'S COURT, KOYILANDY DATED
NIL.
Exhibit P5 TRUE COPY OF THE AGREEMENT DATED NIL
BETWEEN MANOJKUMAR AND THE PETITIONER.
Exhibit P6 TRUE COPY OF THE A.S.NO.31/2019 BEFORE
THE SUB COURT, KOYILANDY DATED
13.08.2019.
Exhibit P7 TRUE COPY OF THE A.S.NO.32/2019 BEFORE
THE SUB COURT, KOYILANDY DATED
13.08.2019.
Exhibit P8 TRUE COPY OF THE ORDER DATED
14.07.2020 IN I.A.211/2020 BEFORE THE
SUB COURT, KOYILANDI.
Exhibit P9 TRUE COPY OF THE RELEVANT PORTION OF
O.P.(C) NO.1677/2020 DATED 02.11.2020
BEFORE THE HON'BLE HIGH COURT OF
KERALA.
O.P.(C)No.1942 of 2021 ..12..
Exhibit P10 TRUE COPY OF THE JUDGMENT DATED
7.9.2021 IN O.P.(C) NO.1677/2020
BEFORE THE HON'BLE HIGH COURT OF
KERALA.
Exhibit P11 TRUE COPY OF THE AFFIDAVIT IN
I.A.NO.420/2019 DATED 24.02.2021 IN
A.S.NO.31/2019 BEFORE THE SUB COURT,
KOYILANDI.
Exhibit P12 TRUE COPY OF THE ORDER DATED
08.10.2021 IN I.A.NO.420/2019 IN
A.S.NO.31/2019 BEFORE THE SUB COURT,
KOYILANDI.
Exhibit P13 TRUE COPY OF THE REPORT DATED
27.01.2020 BY THE STATE.
