Allowed

Voice, Sulthan Bathery v. the Executive Director

Kerala HC14 Jan 2020FAO/139/2018

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the dismissal of an application to sue in forma pauperis. It set aside the impugned order and directed the Trial Court to allow the society to amend its application by filing a schedule of properties and subsequently dispose of the matter after hearing both sides.

What did the court decide?

The impugned order set aside; appellant directed to amend application with a schedule of properties and lead evidence; Trial Court to dispose of the matter by 30.01.2020.

Voice, Sulthan Bathery Vs the Executive Director — Service and Employment | Kerala HC (2020)

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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 DEVAN RAMACHANDRAN

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TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941

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FAO.No.139 OF 2018

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AGAINST THE ORDER IN OP(Indigent) 4/2016 OF SUB COURT, SULTHAN BATHERY

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APPELLANT/PETITIONER/PLAINTIFF:

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VOICE, SULTHAN BATHERY REGISTERED OFFICE AT PULPALLY ROAD, SULTHAN BATHERY POST, VILLAGE AND TALUK, REPRESENTED BY ITS SECRETARY PHILIPOSE.

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BY ADV. SRI.NIRMAL V NAIR

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RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 9:

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1 THE EXECUTIVE DIRECTOR

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JALANIDHI, KWRSA, PTC TOWER, SS KOVIL ROAD, THIRUVANANTHAPURAM - 695 001

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2 REGIONAL PROGRAMME DIRECTOR REGIONAL PROGRAMME MANAGEMENT UNIT, KWRSA, JALANIDHI, 2ND FLOOR, BUILDING NO.111/253, NEAR AKG HOSPITAL, TALAP, KANNUR - 670 002.

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3 PRESIDENT, THONDARNADU GRAMA PANCHAYAT, KOROME POST, VELLAMUNDA, MANANTHAVADY TALUK, WAYANAD - 670 731.

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4 THONDARNADU GRAMA PANCHAYATH KOROME POST, VELLAMUNDA, MANANTHAVADY TALUK, WAYANAD REPRESENTED BY ITS SECRETARY - 670 731.

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SRI.M.V.ANANDAN-SR.GP

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

FAO.No.139 OF 2018

JUDGMENT

This appeal has been preferred by the appellant, who is the plaintiff in O.P.(Indigent) No.4/2016 before the Sub Court, Sulthanbathery, as per which, their application to sue in forma pauperis has been rejected on two grounds: firstly, that the application is not accompanied by a schedule of properties as required under Order 33 Rule 2 of the Code of Civil Procedure (for short 'CPC'); and secondly, that the appellant has not disclosed that they were in possession and ownership of property, the value of which was seen to be more than Rs.4,50,000/- as per the fair value certificate.

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The appellant says that the court below has erred in dismissing the application for the above reasons because, they ought to have been given an opportunity of amending the application by filing a schedule and to have been given an opportunity of establishing their case through evidence to be led by them. The appellant, therefore, prays that the impugned order be set aside and the Trial Court be directed to reconsider the application, filed by them, following due procedure.

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In response, Sri.Anandan, the learned Senior

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FAO.No.139 OF 2018

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Government Pleader, submitted that the application preferred by the appellant, which is a registered Society under the Societies Registration Act, is not maintainable, since it did not contain the schedule of properties held by them, as is mandatorily required under Order 33 Rule 2 of the CPC. He says that, therefore, the court below was justified in dismissing the application invoking the provisions of Order 33 Rule 5(a) of the CPC and further, that the non-disclosure of the admitted fact, as is evident from the testimony of PW1, that the Society was in possession and ownership of property which, they say, had been hence sold, would certainly justify the order of the court below. He says that the evidence of PW1 would indubitably show that the Society was also in possession of movable properties, the value of which would have been sufficient to pay the court fee. He, therefore, prays that this appeal be dismissed.

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I have considered the afore submissions and have also examined the pleadings and materials available on record.

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As is evident from the order impugned and as is virtually admitted before me, the application filed by the appellant before the court below was not accompanied by a

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FAO.No.139 OF 2018

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schedule of properties, as is required under Order 33 Rule 2 of the CPC. Of course, it would have been open to the appellant to have amended the application by filing a schedule, as was necessary; but the court below has recorded that in spite of opportunity being available to the appellant to do so, they had not done so. Further, as is perspicuous from the evidence of PW1, the Society is admitted to have been in possession and ownership of a certain property which, they say, had been sold for about Rs.6,00,000/-. However, there is nothing in evidence to show how this amount had been appropriated, apart from making an evasive explanation that it was used for the purpose of paying off its existing liabilities. I am, therefore, certainly of the view that the order impugned is without error, going by the circumstances and materials available.

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That said, the real question is whether the appellant - Society is indigent, as has been claimed by them. This being a question of fact, certainly had to be established by them through cogent and reliable materials and evidence, which evidently has not been done by them. However, the learned counsel for the appellant prays that if his client is given one more opportunity to amend their application by incorporating

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FAO.No.139 OF 2018

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the schedule, as is required under Order 33 Rule 2 of the CPC and to thereafter lead proper evidence, they would be in a position to establish that the worth of all their properties would not be sufficient to pay the court fee.

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I have considered this request anxiously and though, in normal circumstances, this Court would not have been justified in acceding to the same, I am of the view that in the peculiar circumstances noticed in this case, particularly because the appellant is a registered society, it would be appropriate to grant them one final opportunity to prove their case, if they are able to do so.

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For this purpose alone, I set aside the order impugned in this appeal, not because I have found against it conclusively; but so as to pave way for a fresh consideration of the application of the appellant.

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Consequently, this appeal is allowed and the impugned order of the Sub Court, Sulthanbathery in O.P.(Indigent) No.4/2016 is set aside; with a consequential direction to the said Court to allow the appellant to amend the application by incorporating the schedule, as is required under Order 33 Rule

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FAO.No.139 OF 2018

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2 of the CPC and to thereafter dispose of the same, after allowing both sides due opportunity of leading evidence and producing materials in substantiation of their respective claims and contentions.

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In order to enable the court below to decide the matter expeditiously, I direct both sides to appear before it at 11 a.m. on 30.01.2020 and every effort will be taken by the said Court to dispose of the application filed by the appellant within a period of month thereafter.

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In the facts and circumstances noticed herein, I make no order as to costs and leave the parties to suffer their respective costs in this appeal.

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Sd/- DEVAN RAMACHANDRAN

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Stu

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JUDGE

Voice, Sulthan Bathery v. the Executive Director

Case brief

What is this about?

What did the court decide?

Voice, Sulthan Bathery v. the Executive Director

Case brief

What is this about?

What did the court decide?

What the court decided

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