Thankamani vs Vijayadharan
2021 Latest Caselaw 18364 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE P.SOMARAJAN
      TUESDAY, THE 7th DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                          FAO NO. 96 OF 2020
 AGAINST THE ORDER IN OP(I) 58/2017 OF ADDITIONAL DISTRICT COURT -
                            III, ALAPPUZHA
APPELLANTS/PETITIONERS:

     1     THANKAMANI, AGED 63 YEARS, W/o LATE SOMANATHAN,
           RAJALEKSHMI MANDIRAM, PATTANAKKAD VILLAGE,
           PATTANAKKAD P.O., CHERTHALA TALUK, ALAPUZHA DISTRICT.

     2     RAJALEKSHMI, AGED 34 YEARS, D/o LATE SOMANATHAN,
           RAJALEKSHMI MANDIRAM, PATTANAKKAD VILLAGE,
           PATTANAKKAD P.O., CHERTHALA TALUK, ALAPUZHA DISTRICT.

     3     DHANALEKSHMI, AGED 27 YEARS, D/o LATE SOMANATHAN,
           RAJALEKSHMI MANDIRAM, PATTANAKKAD VILLAGE,
           PATTANAKKAD P.O., CHERTHALA TALUK, ALAPUZHA DISTRICT.

           BY ADV V.VENUGOPALAN NAIR



RESPONDENT/RESPONDENT:

           VIJAYADHARAN, AGED 73 YEARS, S/o GANGADHARAN,
           VELIYIL HOUSE, PATTANAKKAD VILLAGE, PATTANAKKAD MURI,
           CHERTHALA, ALAPPUZHA, PIN-688531.


     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 F.A.O.No.96 of 2020                    2

                                                                       "CR"

                                  JUDGMENT

The order rejecting permission to appeal as indigent

persons (three in numbers) is under challenge by the

petitioners therein.

2. It is the defendants in the suit who came up in

appeal against the decree of realisation of money due from

their predecessor-in-interest, the husband of first

defendant and the father of the remaining defendants.

Among the three petitioners, the first one is the mother

of second and third petitioners. She is a widow aged more

than 60 years having no job or income, except a monthly

pension of Rs.1,000/-. The other two are the unemployed

daughters, who were given in marriage and residing along

with their husbands. Their husbands are employed in Police

service and KSRTC service respectively. The First

Appellate Court rejected their application to appeal as

indigent persons on the ground that the first appellant,

though a widow, admitted while in the box, that her sons-

in-law are employed. The second and third appellants, who

are the daughters, were found to have sufficient means on

account of employment of their husbands. The report of the

District Collector that they are having immovable

properties, having an extent of 8.09 Ares and 11.29 Ares

in Pattanakkad Village, was also taken into consideration

and found that no permission can be granted to appeal as

indigent persons, for which the trial court relied on two

decisions viz., Mini James v. T.I.George (2018 Supreme

(Ker.) 766) and Palakkil Puthiyamaliyekkal Abdul Razac v.

P.K.Salim (2018(4) ILR (Ker.) 893). The legal position

laid down in these two decisions has not been properly

applied or understood by the learned District Judge. It is

not discussed anywhere in the impugned order whether the

two properties reported by the District Collector, viz.,

8.09 Ares and 11.29 Ares in Pattanakkad Village are

available for raising the required court fee or whether it

is the property under attachment in the suit. The mere

availability of immovable property, by itself, will not

constitute 'sufficient means' for the purpose of Order

XXXIII or Order XLIV CPC. No discussion worth the name

has been made in the impugned order with respect to the

availability of the abovesaid two properties for raising

the funds. Without adjudicating the abovesaid question,

the learned District Judge concluded that the

appellants/petitioners have sufficient means to pay the

required court fee.

3. Strange enough, it is not mentioned anywhere in the

impugned order what is the quantum of court fee to be

paid. The expression 'sufficient means' to pay the court

fee has to be considered with the capacity or ability to

raise sufficient funds in order to meet the required court

fee, for which necessarily, the quantum of court fee

payable has to be mentioned in the order so as to

ascertain the ability. It depends upon the quantum of

court fee payable, without which, no adjudication can be

rendered with respect to the sufficiency of means or

ability to raise the funds. A person cannot be said to

have sufficient means simply because of the reason that he

has got some money or fund or able to raise fund, unless

the same is sufficient to meet the requirement. The mere

possession of some money or ability to raise funds cannot

be construed as sufficient means unless the money or the

ability to raise the funds satisfies the requirement.

Hence the expression 'sufficient means' must be understood

depending on the quantum of court fee payable. The

question of 'sufficient means' hence has to be adjudged in

relation to the quantum of court fee payable. Necessarily

it should find a place in the order either granting or

rejecting the permission.

4. The First Appellate Court went wrong in

considering an extraneous aspect that the party went up to

this court on two occasions by paying Advocate fee, as a

ground to reject the application. It is neither

permissible nor advisable to go into such extraneous

matters while considering an application under Order

XXXIII or Order XLIV CPC.

5. The expression 'sufficient means' should always be

appreciated in relation to the income of the petitioners

or capacity to raise income by the petitioners and shall

not be considered in reference to the income of his or her

close relatives viz., husband, wife, son, daughter, son-

in-law, daughter-in-law, brother, sister etc. The learned

Additional District Judge has committed a very serious

mistake by taking into consideration the income of sons-

in-law as the income of first petitioner and their

respective wives, the petitioners 2 and 3.

Hence, the impugned order is set aside and the matter

is remanded back to the First Appellate Court for proper

disposal, for which the parties shall appear before the

First Appellate Court on 24.09.2021. The appeal is allowed

in part accordingly.

Sd/-

P.SOMARAJAN JUDGE DMR/-