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Kerala High Court

Biju Joseph vs Libo John on 20 January, 2026

                                                        2026:KER:4134
F.A.O.No.73 of 2025
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                   THE HONOURABLE MR. JUSTICE S.MANU

 TUESDAY, THE 20TH DAY OF JANUARY 2026 / 30TH POUSHA, 1947

                             FAO NO. 73 OF 2025

         AGAINST       THE      ORDER       DATED   30.10.2024    IN

OP (INDIGENT) NO.1 OF 2023 OF SUB COURT, SULTHAN BATHERY

APPELLANT/PETITIONER:
          BIJU JOSEPH
          AGED 46 YEARS
          PARATHOTTIYIL HOUSE,
          CHERUKKATTUR VILLAGE,
          CHERUKKATTUR P.O.,
          MANANTHAVADY TALUK, PIN - 670721.

            BY ADVS.SHRI.PAULSON M.J.
            SHRI.TOBIAS BENNY
RESPONDENTS/RESPONDENTS:
    1     LIBO JOHN,
          S/O. JOHN AUGUSTINE, PUTHENPURAYIL HOUSE,
          THODUPUZHA VILLAGE,
          THODUPUZHA TALUK, PIN - 685584.

     2      LITO JOHN,
            S/O.JOHN AUGUSTINE, PUTHENPURAYIL HOUSE,
            THODUPUZHA VILLAGE,
            THODUPUZHA TALUK, PIN - 685584.


      THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
15.01.2026, THE COURT ON 20.01.2026 DELIVERED THE FOLLOWING:
                                                         2026:KER:4134
F.A.O.No.73 of 2025
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                            S.MANU, J.
           -------------------------------------------------
                        F.A.O.No.73 of 2025
           ------------------------------------------------
             Dated this the 20th day of January, 2026

                            JUDGMENT

Petitioner in Original Petition (Indigent) No.1/2023 on the

file of the Subordinate Judge's Court, Sulthan Bathery, has filed

this appeal aggrieved by the rejection of the application filed

under Order XXXIII Rule 1 of the Code of Civil Procedure.

2. According to the appellant, respondents/defendants

offered to sell a property of the 2nd respondent to the appellant

and a sale agreement was executed on 9.2.2011. The total

consideration fixed was Rs.1,50,67,500/-. Appellant had given

Rs.10,00,000/- as advance consideration. On 24.2.2011 and

7.5.2011, Rs.20,00,000/- each were paid to the 1 st respondent,

the power of attorney holder of the 2 nd respondent. These

payments were endorsed on the reverse side of the agreement.

The appellant entered into another agreement with two others 2026:KER:4134

on the strength of the agreement executed between him and

the 1st respondent for sale of the same property for a higher

consideration.

3. According to the appellant, on 9.2.2011, he was

detained and the agreement was forcefully taken from him by

the respondents and the persons who entered into the

subsequent agreement with him. He was forced to sign several

papers and also on the reverse side of the agreement. Though

he approached police, no case was registered. Appellant claims

that he is entitled to get back Rs.50,00,000/- paid towards sale

consideration. He is liable to pay Rs.8,42,200/- as court fee and

Rs.1,23,800/- as Legal Benefit Fund for lodging the suit.

4. Appellant states that now he is unemployed. He has

only 20 cents of land and no income is generated from the said

property. He had a Toyota Innova vehicle, purchased by

borrowing money. The car was of 2010 model. It is submitted by

the learned counsel for the appellant that the said vehicle was

later sold and the amounts were utilized for clearing the debt 2026:KER:4134

and for treatment of the wife of the appellant. It was stated in

the application filed before the trial court and in the proof

affidavit that the appellant has no means to pay the court fee

and the Legal Benefit Fund.

5. In the proof affidavit, he further stated that he is now

residing with his brother and as he is constantly taking care of

his father whose right leg was amputated, he is not in a position

to engage in any income-generating activity. His wife is also

unemployed.

6. The appellant was cross-examined by learned counsel

for the respondents. However, nothing was brought out to

discredit the version regarding indigency. On the side of the

appellant, Exts.A1 to A7 were marked.

7. The learned Sub Judge, after hearing both sides,

dismissed the petition. The learned Judge noted that the

appellant is a person of 45 years of age without any health

issues. He is capable of doing any work. The learned Judge

found that he has earning capacity. The learned Judge also 2026:KER:4134

noted that though the car was sold by him during the pendency

of the proceedings, he did not care to pay the initial court fee

out of the amount received. It was also noted that no document

showing treatment of the wife and loan claimed to have been

obtained for buying the vehicle were produced. In conclusion,

the learned Judge found against the appellant and rejected the

application by the impugned order.

8. Heard the learned counsel for the appellant and

perused the pleadings and records.

9. In Paulose @ Paulo v. Elias K.Varghese and

another [2012 (1) ILR (Ker) 972], a Division Bench of this

Court held referring to two earlier judgments as under:-

"4. An indigent person need not be one bereft of all material possessions of value. The Code confers the benefit on persons without 'sufficient means'. It refers not, to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain whether he is capable of raising the court fee in normal circumstances. The Code uses the expression 2026:KER:4134

'sufficient means', i.e. "means" sufficient to pay court fee after meeting the basic requirements of life. Total destitution is no prerequisite to seek justice. If he does not have sufficient means to pay court fee, justice shall not be denied to him. A person who has no possession, save his residential house, and who is over 70 years of age with no prospect of earning capacity, is a person without means to pay the requisite court fee. (Vide Xavier V. Kuriakose (1987 (1) KLT 176).

5. The benefit is conferred on persons without 'sufficient means' and not without any means at all.

Pauperism is not a pre-requisite for leave to sue as an indigent person. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property which the court has to look into. Possession of 'sufficient means' refers to possession of sufficient realisable property which will enable the plaintiff to pay the court fee. Possession of hard cash sufficient enough to pay the court fee is not a pre-requisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of 2026:KER:4134

sufficient means to pay the court fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. Even though sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of 'sufficient means' should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilize for the litigation without detriment to his normal existence. A debt that is yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court fee cannot be taken into account in calculating sufficient means. The words used are "possessed of sufficient means"