Partly allowed

Thankamani v. Vijayadharan

Kerala HC7 Sept 2021FAO/96/2020

Case brief

AI extract

What is this about?

The High Court set aside the rejection of permission to appeal as indigent persons by the Additional District Court. It held that the lower court erred in counting the income of sons-in-law and wives and failed to adjudicate if the reported immovable properties were available to raise court fees. The appeal was allowed in part and the matter remanded.

What did the court decide?

Impugned order setting aside permission to appeal as indigent is set aside and the matter remanded to the First Appellate Court for proper disposal.

Thankamani Vs Vijayadharan — Pension and Retirement Benefits | Kerala HC (2021)

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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 P.SOMARAJAN

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TUESDAY, THE 7^th DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943

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FAO NO. 96 OF 2020

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AGAINST THE ORDER IN OP(I) 58/2017 OF ADDITIONAL DISTRICT COURT -

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III, ALAPPUZHA

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APPELLANTS/PETITIONERS:

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1 THANKAMANI, AGED 63 YEARS, W/o LATE SOMANATHAN, RAJALEKSHMI MANDIRAM, PATTANAKKAD VILLAGE, PATTANAKKAD P.O., CHERTHALA TALUK, ALAPUZHA DISTRICT.

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2 RAJALEKSHMI, AGED 34 YEARS, D/o LATE SOMANATHAN, RAJALEKSHMI MANDIRAM, PATTANAKKAD VILLAGE, PATTANAKKAD P.O., CHERTHALA TALUK, ALAPUZHA DISTRICT.

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3 DHANALEKSHMI, AGED 27 YEARS, D/o LATE SOMANATHAN, RAJALEKSHMI MANDIRAM, PATTANAKKAD VILLAGE, PATTANAKKAD P.O., CHERTHALA TALUK, ALAPUZHA DISTRICT.

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BY ADV V.VENUGOPALAN NAIR

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RESPONDENT/RESPONDENT:

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VIJAYADHARAN, AGED 73 YEARS, S/o GANGADHARAN, VELIYIL HOUSE, PATTANAKKAD VILLAGE, PATTANAKKAD MURI, CHERTHALA, ALAPPUZHA, PIN-688531.

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

F.A.O.No.96 of 2020

“CR”

JUDGMENT

The order rejecting permission to appeal as indigent

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persons (three in numbers) is under challenge by the petitioners therein.

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It is the defendants in the suit who came up in

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appeal against the decree of realisation of money due from their predecessor-in-interest, the husband of first defendant and the father of the remaining defendants. Among the three petitioners, the first one is the mother of second and third petitioners. She is a widow aged more than 60 years having no job or income, except a monthly pension of Rs.1,000/-. The other two are the unemployed daughters, who were given in marriage and residing along with their husbands. Their husbands are employed in Police

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service and KSRTC service respectively. The First

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Appellate Court rejected their application to appeal as indigent persons on the ground that the first appellant, though a widow, admitted while in the box, that her sonsin-law are employed. The second and third appellants, who

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F.A.O.No.96 of 2020

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are the daughters, were found to have sufficient means on

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account of employment of their husbands. The report of the

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District Collector that they are having immovable properties, having an extent of 8.09 Ares and 11.29 Ares in Pattanakkad Village, was also taken into consideration

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and found that no permission can be granted to appeal as indigent persons, for which the trial court relied on two decisions viz., Mini James v. T.I.George (2018 Supreme (Ker.) 766) and Palakkil Puthiyamaliyekkal Abdul Razac v. P.K.Salim (2018(4) ILR (Ker.) 893) . The legal position laid down in these two decisions has not been properly applied or understood by the learned District Judge. It is not discussed anywhere in the impugned order whether the two properties reported by the District Collector, viz., 8.09 Ares and 11.29 Ares in Pattanakkad Village are available for raising the required court fee or whether it is the property under attachment in the suit. The mere availability of immovable property, by itself, will not constitute 'sufficient means' for the purpose of Order

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XXXIII or Order XLIV CPC. No discussion worth the name has been made in the impugned order with respect to the

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F.A.O.No.96 of 2020 4

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availability of the abovesaid two properties for raising

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the funds. Without adjudicating the abovesaid question,

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the learned District Judge concluded that the

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appellants/petitioners have sufficient means to pay the required court fee.

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Strange enough, it is not mentioned anywhere in the

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impugned order what is the quantum of court fee to be paid. The expression 'sufficient means' to pay the court fee has to be considered with the capacity or ability to raise sufficient funds in order to meet the required court fee, for which necessarily, the quantum of court fee

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payable has to be mentioned in the order so as to ascertain the ability. It depends upon the quantum of court fee payable, without which, no adjudication can be rendered with respect to the sufficiency of means or ability to raise the funds. A person cannot be said to have sufficient means simply because of the reason that he has got some money or fund or able to raise fund, unless the same is sufficient to meet the requirement. The mere possession of some money or ability to raise funds cannot be construed as sufficient means unless the money or the

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F.A.O.No.96 of 2020 5

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ability to raise the funds satisfies the requirement.

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Hence the expression 'sufficient means' must be understood

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depending on the quantum of court fee payable. The question of 'sufficient means' hence has to be adjudged in relation to the quantum of court fee payable. Necessarily

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it should find a place in the order either granting or rejecting the permission.

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considering an extraneous aspect that the party went up to this court on two occasions by paying Advocate fee, as a

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ground to reject the application. It is neither

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permissible nor advisable to go into such extraneous matters while considering an application under Order XXXIII or Order XLIV CPC.

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The expression 'sufficient means' should always be appreciated in relation to the income of the petitioners or capacity to raise income by the petitioners and shall not be considered in reference to the income of his or her

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close relatives viz., husband, wife, son, daughter, son-

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in-law, daughter-in-law, brother, sister etc. The learned Additional District Judge has committed a very serious

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F.A.O.No.96 of 2020 6

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mistake by taking into consideration the income of sonsin-law as the income of first petitioner and their respective wives, the petitioners 2 and 3.

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Hence, the impugned order is set aside and the matter is remanded back to the First Appellate Court for proper disposal, for which the parties shall appear before the First Appellate Court on 24.09.2021. The appeal is allowed in part accordingly.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Thankamani v. Vijayadharan

Case brief

What is this about?

What did the court decide?

Thankamani v. Vijayadharan

Case brief

What is this about?

What did the court decide?

What the court decided

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