(2013) 300 KLR 162 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934 OP(C).No. 448 of 2013 (O) -------------------------- (AGAINST ORDER DT.30.6.2012 IN IA.2097/2011 & ORDER DT.11.7.2012 IN IA.1347/2012 IN OS.78/2011 OF SUB COURT, PALAI) PETITIONER(S)/PLAINTIFF: -------------------------------------- BASIL THOMAS, S/O.K.J.THOMAS AGED 40 YEARS KANJIRATHINGAL VEEDU, ANTHEENAD PO ANTHEENAD KARA, LALAM VILLAGE, MEENACHIL TALUK. BY ADVS.SMT.SARITHA THOMAS SRI.SAJEEVAN KURUKKUTTIYULLATHIL RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. V.M JOSEPH, S/O.V.M.MATHAI, AGED 39 YEARS VELLIYANKANDATHIL VEEDU, ANTHEENAD PO KOLLAPPALLYBHAGOM, KADANAD KARA KADANAD VILLAGE, MEENACHIL TALUK. 2. THANKAMMA, W/O.V.M. JOSEPH, AGED 60 YEARS VELLIYANKANDATHIL VEEDU, ANTHEENAD PO KOLLAPPALLYBHAGOM, KADANAD KARA KADANAD VILLAGE, MEENACHIL TALUK. R1,R2 BY ADV. SRI.P.C.HARIDAS THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-03-2013, ALONG WITH RFA. 822/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC.448/2013 APPENDIX PETITIONER'S EXHIBITS :
// True Copy // PA to Judge THOTTATHIL B.RADHAKRISHNAN & B.KEMAL PASHA, JJ. ````````````````````````````````````````````````````````````` O.P.(C) No.448 of 2013 & R.F.A.No.822 of 2012 ````````````````````````````````````````````````````````````` Dated this the 18th day of March, 2013 Civil Procedure Code, 1908 - Order 33 - Fundamentally, the provisions in Order 33 are to be utilised, when it is shown that a litigant is unable to pay the due court fee. Those provisions apply also to payment of balance court fee. There is no rigid formula, which confines the relief under Order 33 to only persons, who are essentially striving on the poverty line. Even availability of assets or wealth does not necessarily mean that a person will have the sufficient means to pay the court fee. J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ Thottathil B.Radhakrishnan, J. These matters are filed by the plaintiff in a suit for declaration, specific performance and certain other reliefs. The value of the subject matter of the suit was determined in the plaint as more than `22 lakhs and the court fee payable on the plaint is `1,94,560/-. One-tenth of the court fee payable on the plaint at the stage of institution was remitted. When the suit was posted for payment of balance court fee, the plaintiff invoked Order 33 of the Code of Civil Procedure and sought that he may be granted leave to sue as an indigent person, in so far as the balance court fee is concerned. Even as per the impugned order, no statement of the revenue authorities as regards their views in the matter was available. The court below, however, looked into the schedule of the application seeking leave to sue as indigent and took the view that a commission be issued to ascertain the assets of the plaintiff. Even going by the order passed by the court below, which is Ext.P3 in O.P.(C) No.448/2013, the plaintiff possesses a car, television and certain other equipments for a decent living in his household. He has disclosed that he has six soverings of gold. According to the court below, gold is equivalent to liquid money and the nature of belongings disclosed was sufficient enough to have the entire court fee paid. The plaintiff did not find ways and means to deposit the bata fixed by the court below for the commissioner. The court below thereupon passed Ext.P1 order in O.P.(C) No.448/2013 rejecting the application for leave to sue as an indigent and directed the plaintiff to pay the balance curt fee within three days. As against that, the plaintiff came to this Court earlier and obtained an order in writ jurisdiction requiring the court below to hear the application for review of that order. That led to a more elaborate order (Ext.P3 in O.P.(C) No.448/2013), which expands and reasons out the decision that the plaintiff has to pay the balance court fee. Since the balance court fee was not paid, the court below rejected the plaint. That has led to R.F.A.No.822/2012. 2. Heard learned counsel for the petitioner and learned counsel for the respondents. 3. Fundamentally, the provisions in Order 33 are to be utilised, when it is shown that a litigant is unable to pay the due court fee. Those provisions apply also to payment of balance court fee. There is no rigid formula, which confines the relief under Order 33 to only persons, who are essentially striving on the poverty line. Even availability of assets or wealth does not necessarily mean that a person will have the sufficient means to pay the court fee. This provision is well settled by the Apex Court and this Court. In our view, the court below ought to have adopted a softer approach and the plaintiff ought to have been granted an opportunity to tender evidence, after the revenue places its views on record since, ultimately, payment of court fee is treated primary as a matter between the litigant and the State. This is so because the relief granted under Order 33 is only to defer payment of court fee and not exemption from payment of court fee, unless by judicial order the court directs so, on the basis of the provisions of Act X of 1960. 4. For the aforesaid reasons, (i) Orders impugned in O.P.(C) No.448/2013 are set aside. (ii) The order rejecting plaint impugned in R.F.A.No.822/2012 is set aside. (iii) The parties are directed to appear before the court below on 08-04-2013. (iv) The court below will obtain the report of the State through the jurisdictional District Collector and then proceed with the matter granting opportunity to the parties to adduce evidence as to the question of ability of the plaintiff to pay the balance court fee. O.P.(C) and R.F.A. are ordered accordingly. No costs. Sd/- (THOTTATHIL B.RADHAKRISHNAN, JUDGE) Sd/- (B.KEMAL PASHA, JUDGE) aks/20/03 // True Copy // PA to Judge |
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O.P. (C) No. 448 of 2013 - Basil Thomas Vs. Joseph, (2013) 300 KLR 162 : 2013 (2) KLT SN 88posted May 27, 2013, 9:06 AM by Law Kerala [ updated May 27, 2013, 9:07 AM ] |