Kerala High Court
Sebastian Karukaparambil vs J.M.J. Silverster on 31 May, 2013
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM [C.R]
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 10TH DAY OF JANUARY 2017/20TH POUSHA, 1938
CRP.No. 469 of 2013 ()
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(AGAINST THE ORDER IN OP 2/2012 of SUB COURT,
SULTHAN BATHERY DATED 31-05-2013)
REVISION PETITIONER(S)/IST RESPONDENT:
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SEBASTIAN KARUKAPARAMBIL, 45 YEARS,
S/O.IGNASHYAS,PUNNAPRA,ALAPPUZHA DISTRICT.
BY ADV. SMT.CELINE JOSEPH
RESPONDENT(S)/PETITIONER $ RESPONDENTS 2 TO 5:
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1. J.M.J. SILVERSTER, 58 YEARS,
S/O.AMBROSE, KARUNA GENERAL DEVELOPMENT SOCIETY,
REG.NO.156/06, MANANTHAVADY.
2. BABU STEEPHEN,
S/O.JOSEPH, KURISHINGAL VEEDU, BUILDING CONTRACTOR,
MANANTHAVADY.P.O, PIN-670 645.
3. K.GOPINATHAN,
ASSISTANT SUB INSPECTOR OF POLICE,
MANANTHAVADY POLICE STATION, PIN:670 645.
4. STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,SECRETARIAT,
THIRUVANANTHAPURAM.
5. JOSEPH KALATHIL PARAMBIL,
KOZHIKODE BISHOP, BISHOP HOUSE, MALAPARAMBA.P.O,
KOZHIKODE-673 009.
R1 BY ADV. SRI.P.V.KURIACHAN
THIS CIVIL REVISION PETITION HAVING BEEN RESERVED ON 12.11.2016 AND
FINALLY HEARD ON 10-01-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
ss
K.RAMAKRISHNAN, J. [C.R.]
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C.R.P No.469 of 2013
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Dated this the 10th day of January, 2017
ORDER
First respondent in O.P.(Indigent) No.2/2012 of Sub Court, Sulthan Bathery is the revision petitioner herein. The first respondent herein as petitioner filed the above indigent original petition for permission to sue as an indigent person under Order 33 Rule 1 of the Code of Civil Procedure.
2. It is alleged in the petition that the revision petitioner herein had filed a false petition before Mananthawady police against the first respondent herein alleging commission of offences under section 341, 323, 294B and 506(1) of the Indian Penal Code and the police registered a crime as crime No.497/2007 and later submitted final report before the Judicial First Class Magistrate Court-I, Mananthawady, where it was taken on file as C.C.288/2008. According to the first respondent herein the case was registered and final report was filed at the influence of the 5th respondent. So all the respondents were responsible for filing a false complaint against the petitioner. The first respondent was acquitted by the court below, he suffered loss of reputation on account of the false implication in the case and also suffered mental agony. So he estimated damages of C.R.P No.469 of 2013 2 50,00,000/- from the respondents. He had filed the suit for damages to the tune of 50,00,000/- payable by the respondents in the original petition. He had mentioned in the petition itself that he has no properties of his own. He has got only personal belongings, list of which has been made available in the petition. He had also stated that, though he was having power of attorney to look after the properties of his wife, there was no income from the property and now he is residing away from his family members alone in a rented house and he had also filed an application for maintenance before the Revenue Divisional Officer from his wife and son as both were working. He has no means to pay the requisite court fee, so he prayed for permission to sue as an indigent person.
3. Respondents 1, 2 and 5 entered appearance and filed counter statements denying the allegations and also their liability to pay compensation. They also denied the allegation that the petitioner who is the first respondent herein has no means to pay the requisite court fee, he has got properties and capable of raising the court fee. They have also contended that, there is no cause of action to file the suit and so they prayed for dismissal of the petition.
4. Though notice was issued to the District Collector and Government Pleader entered appearance, no report regarding the C.R.P No.469 of 2013 3 means of the first respondent herein was filed before the court below. The petitioner in the court below who is the first respondent herein was examined as PW1 and Exts.A1 to A19 were marked on his side. He was cross examined by the respondents; no contra evidence was adduced on their side. After considering the evidence on record, the court below came to the conclusion that the petitioner has proved that he has no properties or means to raise the fund to pay the requisite court fee and granted permission to sue as an indigent person and numbered the suit as O.S.120/2013. Aggrieved by the said order, the present revision has been filed by the first respondent, the revision petitioner herein.
5. Heard, Smt. Celine Joseph, counsel appearing for the petitioner and Sri.Kuriachan P.V., counsel appearing for the first respondent and Sri.Johnson, Government Pleader appearing for the 4th respondent and others remained absent.
6. Learned counsel appearing for the petitioner submitted that the petitioner has not disclosed the required things to be disclosed as provided under Order 33 Rule 2 and suppression of material facts will entitle the petition to be dismissed. He had not mentioned about the account in the bank and he had also not mentioned about the amounts available under 'Karuna Development C.R.P No.469 of 2013 4 Society'. So there is suppression of facts. He had also submitted that, though his wife and son are employed and they are having properties, the same has not mentioned in the petition. He had relied on the decisions reported in Sundaresan V. State of Kerala (2008(3) KLT
531); Mathew v. State of Kerala (1996(2) KLT 363); K.U. Mathew v. State of Kerala and Others (1996 (2) KLJ 237) and Biju Paul v. Mercy (2014(3) KLT 324) in support of his case.
7. On the other hand, the learned counsel for the first respondent submitted that the court below had considered these aspects and rightly come to the conclusion that the petitioner has proved that he has no means to raise the fund to pay the requisite court fee. He had also stated that though there is an account in District Co-operative Bank, there is no amount in the account and that was the reason why he had not mentioned the same in the petition. There is no willful suppression of fact.
8. The fact that, first respondent herein filed O.P.(Indigent) 2/2012 before the Sub Court Sulthan Bathery, claiming damages to the tune of 50,00,000/- against respondents for falsely implicating him in a criminal case which ended in acquittal is not in dispute. According to the revision petitioner in his counter, the appeal has been filed against the order of acquittal and that is pending. According to C.R.P No.469 of 2013 5 him except certain movables mentioned in the petition, he has no means to raise the fund. It is mentioned in the petition itself that he was given power of attorney to look after the properties of his wife and son and there was no income from the property and he is not in good terms with his wife and son and as such he is residing in a rented house. So there is no necessity to mention the properties of the wife or the income derived from the property or the income of the wife in the petition as they are not living as a single family unit so as to derive an inference that family unit as such has got income to pay the requisite court fee as has been held in the decisions reported in Biju Paul v. Mercy (2014(3) KLT 324), relying on the decision reported in Mathai M. Paikeday v. C.K.Anthony (2011 SAR (Civil) 614), where it has been held that, where two people are living together and functioning as a single economic unit whether married, related or otherwise, consideration of their combined financial assets may be warranted for the purpose of determining the party's indigency status in a civil proceedings. That was a case where the wife filed the suit claiming certain amount where her husband was an earning member and she was depending on him. The income and the properties of the husband has not been mentioned. It is also brought out in evidence in that case that, husband sold the property for 23,00,000/- and they C.R.P No.469 of 2013 6 were having the funds with them and that fact was suppressed and that was taken as a ground by this court to deny permission to sue for the respondent in that case invoking order 33 Rule 2 read with Rule 5
(a) of the Code of Civil Procedure.
9. In the decisions reported in Mathew v. State of Kerala (1996(2) KLT 363), it has been held that, when an applicant does not disclose an asset held by him in his application, what ever be the reason, the application is liable to be rejected under Order 33 Rule 1, 2 and 5 of the Code of Civil Procedure. It is held in the same decision that the rejection could be under Order 33 Rule 5(a) of the Code, in such a situation and rejection under Order 33 Rule 5(a) of the Code can be warded off by an applicant for permission to sue as an indigent person, only by establishing that it was a bona fide omission on his part to include the asset and only after getting an application for permission amended in accordance with the requirement of Order 33 Rule 2 of the Code of Civil Procedure. It is further held in the same decision that, it is for the applicant to prove to the satisfaction of the court that the omission on his part was not deliberate and it was a bona fide one. An application to permission the sue as an indigent person must be made with utmost bona fides and on the omission being discovered at the instance of the State or the defendant in the C.R.P No.469 of 2013 7 suit, it is for the applicant to establish that, his omission to include is bona fide. It is really a case where he caught hold on omission, if it is deliberate, he must take its consequences. It is in that context that it is become necessary for him to explain his omission and show that it was not deliberate or there was no lack of bona fides on his part in making such omission. The adoption of a different approach would encourage dishonesty in the applicant taking him a chance on non- discovery of the omitted asset and on being discovered taking shelter under the plea that the omission to include is not shown to win malafide by the other side.
10. In the decisions reported in K.U. Mathew v. State of Kerala and Others (1996 (2) KLJ 237), it has been held that, when a suit has been filed by the plaintiff as a sole proprietor of a firm whose other partners are stated to have retired earlier, it is necessary for the plaintiff to show that all the partners of the firm are indigent for obtaining permission to prosecute the suit as an indigent person. It is also held that, non-disclosure of property of a person seeking permission to sue as an indigent person is sufficient to dis-entitle the permission.
11. In the decision reported in Chinnaswami Goundan v. Anthonyswamy(AIR 1953 TRA-CO.614) it has been held, omission C.R.P No.469 of 2013 8 to include an item of asset in the application for leave to sue inform a pauperies if not intentional and mala fide, then if the applicant is able to establish the fact that he has no means to raise the fund to pay requisite court fee, then he is still pauper within the meaning of Rule 1, that is not possessed of sufficient means to enable him to pay the required court fee, even if the item is taken into account the petition held should not be rejected under Rule 5(a). Further in the decision report in Paulose @ Paulo v. Elias K.Varghese & Anr.(2012 (1) KLJ
807), it has been held that possession of sufficient means refers to possession of sufficient realizable property to pay court fee at the time of the suit. Pauperism is not a pre requisite for leave to sue as an indigent person. Similarly possession of hard cash to pay court fee is neither a pre-requisite to make one person with sufficient means. Courts shall look into the capacity of the person to raise money and not the property in his actual possession.
12. In this case, though PW1 was cross examined at length, nothing was brought out to show that he is having independent income of his own. Further he himself had produced a document, a report of the village officer sent to Sub Collector in a proceedings filed for maintenance marked as Ext.A13, where it was mentioned that, he has no income or employment or other source of income and his wife, C.R.P No.469 of 2013 9 daughter and son were residing within the jurisdiction of Mananthawady village and he is entitled to get maintenance from them in the capacity as husband and father of the respondents therein respectively. So that shows that, he had no independent income to maintain himself. Further he had not mentioned the account details of District Co-operative bank, but he had mentioned in the cross examination that though he had an account in the bank, he has no transaction in the bank. No attempt was made on the part of the respondents to prove that there is sufficient amount in the account and non-disclosure of that amount will dis-entitle him to seek for permission to sue as an indigent person. Though he had stated that he is an office bearer of 'Karuna Development Society' and he had stated that there is no amount with him and the account of the society has not been audited and they were not collecting any contribution from the persons and they have no funds with them. So non inclusion of this aspect also is not fatal as it is not going to affect the question of capacity of the petitioner to raise fund. So omission to mention the bank account details cannot be said to be a willful suppression especially when the report of the Village Officer in another proceedings, shows that he has no independent income to maintain himself and in this case though notice was issued to the District C.R.P No.469 of 2013 10 Collector, no report has been filed regarding his means to raise the funds to pay the requisite court fee.
13. Regarding the question of issuing notice to the District Collector or Government Pleader to ascertain the means of the person who applied for permission to sue as an indigent person and any defect in the same whether entitled the rejection of the application and whether it can be questioned by the other parties has been considered by the Jammu and Kashmir High Court in the decision reported in Wazir Ram v. Manga Ram (AIR 1981 J&K 10), where it has been held that the matter of court fee was essentially a matter between the State and the pauper and opposite party was granted an opportunity only to show that the application was not bona fide etc., Opposite party could not take upon its role of the State and complaint about the failure of the court to issue notice to the Government Pleader where the court had in any case issued notice to the Collector. It is desirable and proper for the court to issue notice to the Government Pleader in an application seeking permission to sue as pauper in addition to asking for a report from the District Collector but the issuance of the notice to the Collector instead of to the Government Pleader did not vitiate the proceedings and was neither a jurisdictional defect nor a material irregularity warranting interference C.R.P No.469 of 2013 11 by the revisional court using the revisional power.
14. In the decision reported in Balakrishnan v. Narayanan Nair (1984 KLN 173), relying on the decision of the Division Bench of the Hydrabd High Court in Siddappa v. Mahadevamma (AIR 1955 Hyd. 160) held that on account of the non issuance of notice to the Government Pleader, defendant was not in any manner injured and as such that is not fatal and considering the question of indigency of a person to seek permission to sue as an indigent person. But in this case, notice has been issued to the District Collector and Government Pleader entered appearance but in spite of that, no report has been filed regarding the means or capacity of the first respondent herein to raise the fund to pay the requisite court fee. The defendant is not entitled to take shelter to challenge the impugned order on the ground that court below was not justified in proceeding with the matter without getting the report of the Collector regarding the means or capacity of the first respondent herein to raise the fund, in the absence of any evidence adduced on his side to prove the capacity of the person who wants permission to sue as an indigent person. So under such circumstances, the court below was perfectly justified in coming to the conclusion that non-disclosure of the account details of the District Co-operative bank is not willful or deliberate and it is not C.R.P No.469 of 2013 12 going to have any impact in the capacity of the petitioner to raise the amount to pay the requisite court fee and it is immaterial and it is not a ground for rejection of the petition under Order 33 Rule 5(a) of Code of Civil Procedure. Further no evidence was adduced on the side of the revision petitioner to prove that he has got other means to raise the funds to pay the requisite court fee. What is required is to be proved to seek permission to sue for an indigent person under Order 33 Rule 1 of the Code of Civil Procedure, is that he has no independent income or properties from which he can derive income to pay the requisite court fee and he had not disposed of any property within two months of filing of the petition, so as to claim the benefit and that there was cause of action for the plaintiff to file the suit against the defendants. Once these things are proved, then he is entitled to get permission to sue as an indigent person.
So under such circumstances, the court below was perfectly justified in coming to the conclusion that the first respondent herein had established the necessary ingredients to get the leave to sue as an indigent person and rightly granted relief and permitted him to sue as an indigent person and the impugned order does not suffer any infirmity warranting interference at the hands of this court invoking the revisional jurisdiction under Section 115 of the Code of Civil C.R.P No.469 of 2013 13 Procedure. The revision lacks merits and the same is liable to be dismissed.
In the result, the revision is dismissed. The interim order of stay granted is vacated and I.A.2109/2013 is hereby dismissed.
Communicate this order to the court below at the earliest.
Sd/-
(K. Ramakrishnan, Judge) //True Copy// P.A. to Judge ss