Kerala High Court
Bose N.K vs State Represented By The District ... on 27 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 27TH DAY OF JUNE 2025 / 6TH ASHADHA, 1947
FAO NO.35 OF 2024
ARISING OUT OF THE ORDER DATED 22.01.2024 IN IOP
NO.1/2021 OF SUB COURT, SULTHANBATHERY
APPELLANT/PETITIONER:
BOSE N.K
AGED 60 YEARS
S/O KUMARAN,
RESIDING AT NELLITHANATH HOUSE,
FAIR LAND, SULTAN BATHERY P.O,
SULTAN BATHERY VILLAGE AND TALUK,
WAYANAD, PIN - 673592
BY ADVS.
SRI.NIRMAL V NAIR
SMT.ENCIL K. SABU
SMT.NESILI NAZEER
RESPONDENTS/RESPONDENTS:
1 STATE REPRESENTED BY THE DISTRICT COLLECTOR,
WAYANAD
AT KALPETTA NORTH,
KALPETTA POST AND VILLAGE,
VYTHIRI TALUK, WAYANAD DISTRICT, PIN - 673122
2 DEPUTY COMMISSIONER OF SALE TAX
KALPETTA NORTH P.O.,
KALPETTA VILLAGE, VYTHIRI TALUK,
WAYANAD, PIN - 673122
3 DEPUTY COLLECTOR (LA)
CIVIL STATION, KAIRALI NAGAR,
KALPETTA NORTH P.O., KALPETTA VILLAGE,
VYTHIRI TALUK, WAYANAD, PIN - 673122
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BY ADV.
SMT.REKHA C.NAIR, SR.GOVT.PLEADER, R1 TO R3
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 28.03.2025, THE COURT ON 27.06.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 27th day of June, 2025
This appeal is filed challenging the order dated 22.01.2024
of the Sub Court, Sulthan Bathery in O.P.(Indigent) No. 1 of 2021.
Appellant was the petitioner in the O.P.(Indigent).
2. Appellant had preferred the O.P.(Indigent) seeking
permission to sue as an indigent person claiming compensation for
the loss purportedly caused to him due to the acquisition and
withholding of his property by the respondents without payment of
compensation for more than 8 years. The amount sought to be
realized by the appellant from the respondents was Rs.16,59,641/-.
The total court fee payable under Section 22 of the Kerala Court
Fees and Suit Valuation Act was Rs.1,56,176/- and the legal benefit
fund was Rs.16,597/- also had to be paid. Since the appellant had
no means to pay the court fee and the legal benefit fund, he had
submitted the application invoking Order 33 of the CPC drawing it up
in the prescribed form and specifying the particulars of his
immovable and movable assets. The Subordinate Judge had called
for a report from the District Collector, Wayanad as contemplated in
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Order 33 Rule 1A and in the said report, it had been inter alia stated
that though the appellant held title to only the petition schedule
property, he had in his possession another property with respect to
which no purchase certificate had been issued by the Government.
A hearing was conducted and the appellant was examined as PW1.
He had deposed that he was a pensioner and was receiving a
pension of Rs.30,500/- per month and that he had a Bank account.
The Sub Court dismissed the petition filed by the appellant to sue as
an indigent person inter alia holding that, he had suppressed
property details and there was no explanation for such non
disclosure. It was also held that the petition was silent as to the
verification part as contemplated under Order 33 Rule 2. For the
said reasons, the learned Sub Judge dismissed the indigent petition
filed by the appellant, Challenging the said dismissal, the appellant
has filed this FAO.
3. Heard Sri. Nirmal V. Nair, Advocate, for the Appellant and
Smt.Rekha C. Nair, Senior Government Pleader for the
respondents.
4. The learned counsel for the appellant vehemently
contended that the appellant had not pleaded about the additional
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property in his possession since he had no title to the said property
and as he could not have raised the court fee even by selling the
same. The learned counsel further contended that the Sub Court
ought to have considered whether there was any willful act on the
part of the appellant to evade payment of court fee and ought to
have granted sufficient time to rectify the defects in the form of the
application. The genuine claim of the appellant ought not to have
been dismissed on technicalities. There was no material
suppression of facts and that the District Collector had not reported
that the appellant was earning sufficient income from his land
property to enable him to pay court fee or that he had sufficient
funds in his Bank account to meet the payment of court fees. The
learned counsel contended that mere possession of assets is not
the criteria in determining the application under Order 33 Rule 1 and
the question whether the applicant had instant money to pay off the
court fees ought to have been considered. Reliance was placed on
the dictum laid down by this court in Thankamani and others v.
Vijayadharan [2021(5) KHC 395] and Muraleedharan Nair v.
P.Usha Kumari [2022 KHC 1053]. The learned counsel thus prayed
that the Order of the sub court may be set aside or remanded back
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for fresh consideration.
5. Per contra, the learned Senior Government Pleader for the
respondents submitted that the appellant had clearly suppressed the
relevant details of the assets held by him and that even the fact that
he was a retired police officer earning pensionary benefits. Since
the reason for dismissal is not just technical and was blatant
suppression of true and correct facts, there was no question of
remand and the appeal is fit to be dismissed.
6. I have heard both sides in detail. Order 33 Rule 1, 2 and
3 invoked by the appellant 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. ]
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2. Contents of application.--Every application for
permission to sue as an 5 [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
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
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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.]"
The law, concerning the grant of permission to institute a suit as an
indigent person, is trite and settled. In Union Bank of India v.
Khader International Construction and others [(2001) 5 SCC 22],
the Hon'ble Supreme Court succinctly laid down as follows:
"Order 33 CPC is an enabling provision which allows the
filing of a suit by an indigent person without paying the
court fee at the initial stage. If the plaintiff ultimately
succeeds in the suit, the court would calculate the amount
of court fee which would have been paid by the plaintiff if
he had not been permitted to sue as an indigent person
and that amount would be recoverable by the State from
any party ordered by the decree to pay the same. It is
further provided that when the suit is dismissed, then also
the State would take steps to recover the court fee
payable by the plaintiff and this court fee shall be a first
charge on the subject matter of the suit. So there is only a
provision for the deferred payment of the court fees and
this benevolent provision is intended to help the poor
litigants who are unable to pay the requisite court fee to
file a suit because of their poverty."
7. I note that in the case at hand the Sub Court had
conducted an enquiry as contemplated under Order 33 Rule 1A. In
the report submitted by the District Collector, Wayanad, it had been
stated that the appellant in possession of Government land
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extending 0.0405 hectare for which patta had not been received and
had a land including a house having an extent of 0.0405 hectare in
Block No.33 in Re Survey No.410/7 of Noolpuzha Village. It had
also been reliablly concluded by the Sub Court that appellant is a
retired police officer deriving a pension of Rs.30,500/- per month
and that he had not chosen to reveal the said fact in the petition.
That he has a house having 1650 square feet area with electric and
electronic appliances had also not been mentioned in the schedule
to the petition. Further appellant had while deposing admitted having
10 cents of property in his possession and also having an account in
the State Bank of India. The account details had not been
mentioned in the schedule to the indigent O.P.
8. Thus though the appellant had contended that he had
no property other than that mentioned in plaint B schedule of the
indigent OP, the evidence adduced had revealed that the said
contention is wrong and that the petitioner had not disclosed all
assets possessed by him in the petition filed. This had led the Sub
Court to validly conclude that the appellant had suppressed the
property details in the petition so as to get an order in his favour. He
had no explanation whatsoever for the non disclosure of the
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property details in the petition. The Sub Court had consequently
correctly concluded that the appellant had sufficient means to pay
the court fee and held that it is not possible to treat him as an
indigent person incapable of paying the court fee. Reliance placed
on the dictum laid down in Thankamani (supra) and
Muraleedharan Nair (supra) wherein this Court had considered the
scope and ambit of Order 33 Rule 1 while deciding the question of
granting permission to sue as an indigent and the question of
'sufficient means' as mandated in the provision, does not assist the
case of the appellant since the situation varies when there is clear
and cogent evidence of suppression, as had been done by the
appellant in the case at hand.
For the above, I find no reason to interfere with the order
of the Sub Court and the FAO is dismissed.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
