Kerala High Court
P.T.Thomas S/O.Thomas vs The State Of Kerala Represented By on 18 October, 2010
Bench: Thottathil B.Radhakrishnan, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 214 of 2010()
1. P.T.THOMAS S/O.THOMAS, RESIDING AT
... Petitioner
Vs
1. THE STATE OF KERALA REPRESENTED BY
... Respondent
2. THE CHIEF ENGINEER, PWD, ROADS AND
3. THE SUSPENDING ENGINEER, PWD,ROADS AND
4. THE EXECUTIVE ENGINEER,
For Petitioner :SRI.RAJEEV V.KURUP
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :18/10/2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN &
P.BHAVADASAN, JJ.
---------------------------------------------------------
F.A.O. Nos. 214, 215, 216 & 217 of 2010
-----------------------------------------------------------
Dated this the 18th day of October, 2010.
J U D G M E N T
Thottathil B. Radhakrishnan, J.
These appeals are filed challenging the dismissal of applications seeking leave to institute the suits without paying the required court fee. The plaintiff/petitioner is the appellant. Four appeals arise from four applications, seeking leave to sue as an indigent person, which were dismissed holding that the petitioner has immovable properties and income to pay the court fee.
2. The petitioner is a government contractor. The competent authority filed a report before the court below showing the assets of the plaintiff. We required the learned Government Pleader to make available to us a copy of that report. We had also directed the plaintiff/appellant to file an affidavit disclosing his assets, income etc.
3. The plaintiff is now aged 66, going by his affidavit and in his sojourn as a government Contractor, he has filed 78 suits against the State in relation to different contracts. Of them, 71 F.A.O. Nos. 214, 215, 216 & 217 of 2010 2 were filed after paying court fee. He has filed an affidavit saying that he has paid around Rs. 75 lakhs as court fee in 71 suits. 58 suits were decreed and 13 for which court fee has been paid, are pending trial. Six appeals filed by the State were dismissed by the High court and 15 appeals filed by the State are pending in the High Court, states the plaintiff. He further states that 29 execution petitions are pending against the State as filed by him before the Sub Court, Kottayam and the State has not deposited any amount in those cases. He says that around Rs.2 lakhs remain due to him under those execution proceedings and by now, he is incapacitated from paying any further amount as court fee.
4. The question that would arise in the applications for leave to sue as an indigent person is whether the applicant has or has not sufficient resources to pay the court fee. The availability of immovable properties would not be the sole criteria while determining whether he has the means to pay the court fee. Even going by the stand of the State, the petitioner has an annual F.A.O. Nos. 214, 215, 216 & 217 of 2010 3 income of around Rs. 5 lakhs. The total court fee due on the four suits in relation to which these appeals are filed is more than Rs.6 lakhs. We also see the plea of the State that the plaintiff has two quarries and probably other means of income. Taking into consideration the overall situation as available on the basis of the materials in the form of affidavit and otherwise on record, we are of the view that the plaintiff can be treated as not possessing sufficient funds to pay the entire court fee due on the suits in relation to which these appeals are filed. The fact of the matter remains that amounts that are legitimately due to him from the State even under decrees, stand clogged.
In the aforesaid circumstances, we set aside the impugned orders and allow the petitioner to sue as an indigent person as regards 90% of the court fee payable in each of the matters from which these appeals arise. On amounts being generated during the execution proceedings pending between the State and the plaintiff, it will be open to the State to request for appropriation of amounts F.A.O. Nos. 214, 215, 216 & 217 of 2010 4 towards balance court fee as may be payable in all these four cases in terms of Order 33 Rule 12 C.P.C. The F.A.O is allowed accordingly. The petitioner is granted three weeks' time from now to pay 1/10th court fee due on each of the matters from which these appeals arise.
THOTTATHIL. B. RADHAKRISHNAN, JUDGE .
P.BHAVADASAN, JUDGE.
ln