Kerala High Court

Abdul Sathar vs P.V. Manoj Kumar on 17 June, 2025

FAO NO.33/2025                    1



                                            2025:KER:42758

         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
 FAO NO.33/2025                       2



                                                       2025:KER:42758



    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:
 FAO NO.33/2025                            3



                                                             2025:KER:42758


                                                                      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

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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

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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

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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

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,

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

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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

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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