Allowed

Santhosh Kumar v. Manjula Sasidharan

Kerala HC8 Jan 2016FAO/332/2014

Case brief

AI extract

What is this about?

The Appeal Court allowed the appeal and set aside the trial court's order finding the appellant non-indigent. The Court held the appellant possesses mortgaged properties but lacks material proving sufficient income, permitting him to continue the suit as an indigent person.

What did the court decide?

The impugned order is set aside. The appellant is allowed to continue the suit as an indigent person under Order 33 Rule 1 CPC.

Santhosh Kumar Vs Manjula Sasidharan — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937

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FAO.No. 332 of 2014 ()

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AGAINST THE ORDER ON I.A.NO.1318/2014 IN O.S.NO.32/2012 ON THE FILE OF THE SUB COURT, ATTINGAL DATED 7/11/2014

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APPELLANT/PETITIONER/PLAINTIFF :

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SANTHOSH KUMAR

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S/O. CHELLAPPAN CHETTIYAR, CHEMPAVIL VEEDU,

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THEKKUM BHAGOM

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KADAKKAVUR VILLAGE, THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.K.P.SUJESH KUMAR

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RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS:

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MANJULA SASIDHARAN

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W/O. SASIDHARAN, KAINIYIL VEEDU, KADAKKAVUR VILLAGE CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT - 695 131.

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AMALNATH

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S/O. SASIDHARAN, KAINIYIL VEEDU, KADAKKAVUR VILLAGE CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT - 695 131.

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ANUNATH S/O. SASIDHARAN, KAINIYIL VEEDU, KADAKKAVUR VILLAGE CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT - 695 131.

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SASIDHARAN

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KAINIYIL VEEDU, KADAKKAVUR VILLAGE CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT - 695 131.

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R1 - R 4 BY ADVS. SRI.ANIL D. NAIR

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SMT.C.S.SULEKHA BEEVI SRI.R.SREEJITH SMT.ROSIE ATHULYA JOSEPH KUM.SOUMYA PRAKASH

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & A.HARIPRASAD, JJ.

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F.A.O.No.332 of 2014

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Dated this the 8^th day of January, 2016

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J U D G M E N T

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A.Hariprasad, J.

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Plaintiff in O.S.No.32 of 2012 before the Sub Court, Attingal, aggrieved by the order of the trial court on I.A.No.1318 of 2014, has come up in this appeal. We heard the learned counsel appearing for the appellant and the contesting respondents.

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The appellant filed a suit before the court below seeking a decree for realisation of 5 lakhs as damages from the defendants₹ with 12% interest per annum from the date of suit till the date of realisation and also for a consequential injunction restraining the defendants from trespassing into the plaint schedule property and committing waste thereon. As per the valuation, the plaintiff had to pay a total court fee of 48,420/- under Section 22 of the Kerala₹ Court Fees and Suits Valuation Act. He had paid 1/10^th of court fee at the time of institution of the suit. Subsequently, the appellant filed the application seeking exemption from payment of court fee under Order 33, Rule 1 of the Code of Civil Procedure, 1908.

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The learned trial Judge considered the rival contentions of the parties and found that, the appellant did not make out a case to get the benefit under Order 33, Rule 1 of CPC and he was directed

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F.A.O.No.332 of 2014

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to pay the balance court fee. Aggrieved by the same, he has come up in this appeal.

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The learned counsel for the appellant submitted that, the court below did not consider the facts and law correctly. We have gone through the report submitted by the Thahsildar, Chirayinkeezhu showing that the appellant is possessed of three items of properties having extent of 10 cents, 2 cents and 14.25 cents in various survey numbers. The report does not show that, they would fetch sufficient income to hold that the appellant is not an indigent person. That apart, the learned counsel for the appellant would contend that, the properties described in the plaint schedule have been mortgaged with a bank for availing loan. Considering the extent of the properties and the fact that it is subjected to a mortgage, we are of the view that the appeal is to be allowed, especially in the absence of any specific material before us to find that he has sufficient means to pay court fees.

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The learned counsel for the appellant further contended that, payment of 1/10^th of the court fee at the initial stage will not disentitle him from continuing the proceedings in forma pauperis as provided in Order 33, Rule 1 of CPC. To buttress this contention, the decision reported in Basil Thomas v. Joseph [2013 (2) KLT SN 88 (Case No.108)] is pressed into service. In the same lines, another decision of this Court in Poulose @ Poulo v. Elias K

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F.A.O.No.332 of 2014

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Varghese [2012 (1) KHC 754] was also rendered. Considering the fact that there is no material before us to hold that he has sufficient means to pay balance court fee, we are of the view that the learned Sub Judge committed a mistake in finding that the appellant is not an indigent person.

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In the result, we allow the appeal. The impugned order is set aside. The appellant shall be permitted to continue the suit as an indigent person. The court below shall proceed with the trial and at the end of the trial, the liability for paying the court fee shall be determined as provided in Order 33 CPC.

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Sd/- ANTONY DOMINIC, JUDGE

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Sd/- A.HARIPRASAD, JUDGE

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/True Copy/

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P.A to Judge

Santhosh Kumar v. Manjula Sasidharan

Case brief

What is this about?

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Santhosh Kumar v. Manjula Sasidharan

Case brief

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