Petitioner is the plaintiff in O.S.No.389 of 2003, on the file of Sub court, Thiruvananthapuram. The suit was instituted for realisation of Rs.1,12,54,929/=, being the damages sustained in executing the agreement as the Contractor. The total court fee payable is Rs.67,47,543/=. The suit was instituted by paying Rs.88,600/= being 1/10th of the court fee payable. Subsequently, petitioner filed Ext.P2 petition under Order XXXIII of Rule 1 of Code of Civil Procedure to exempt him from paying the balance court fee for the time being, contending that owing to the present financial constraints, he is not in a position to raise sufficient money for paying the balance court fee. That was filed as a petition supported by an affidavit. In the affidavit, petitioner disclosed his assets which are only the dresses and wearing apparels. Under Ext.P4 order, learned Sub Judge rejected application directing the petitioner to file a petition as provided under Order XXXIII of Code of Civil Procedure for declaring him an indigent person, or to pay the balance court fee and making it clear that if not, plaint will be rejected as provided under Rule 11(c) of Order VII of Code of Civil Procedure.

2. Thelearned counsel appearing for petitioner and learned Government Pleader were heard.

3. The argument of the learned counsel is that subsequent to the filing of the petition, petitioner cannot file a petition in the form as provided under Rule 2 of Order XXXIII of Code of Civil Procedure, as plaint has already been instituted and as he became an indigent person subsequent to the institution of the suit, he is entitled to get himself declared an indigent person and learned Sub Judge was not justified in rejecting the application. The learned counsel argued that in an identical case, this Court in Sivarajan v. State of Kerala & Others (1998 (1) KLT 279), directed the trial court to entertain a similar petition and to decide whether plaintiff is an indigent person after conducting an independent enquiry, and learned Sub Judge was not justified in ignoring the said decision which was cited before him, and, therefore, the order is to be quashed.

4. The learned Government Pleader submitted that plaintiff is entitled to institute the suit as an indigent person only as provided under Order XXXIII of the Code of Civil Procedure, and Rule 5 provides for rejection of the application. It was argued that as mandated under clause (a) of Rule 5, when a petition is not framed and presented in the manner prescribed by Rules 2 and 3, court is bound to reject the application, and when the petition filed before the trial court is a petition supported by an affidavit, and Rule 2 provides a different mode of the application, a petition accompanied by an affidavit is not in the form prescribed under Rule 2 and when that petition was not presented by the party as directed under Rule 3, Court cannot entertain that petition and it can only be rejected, as provided under Rule 5(a) of Order XXXIII, and, therefore, there is no reason to interfere with Ext.P4 order.

5. The learned counsel appearing for petitioner argued that Rule 2 provides for an application for permission to sue as an indigent person, and once the suit is instituted by presenting the plaint and paying 1/10th of the court fee, a subsequent petition cannot be filed, as provided under Rule 2 and as no other form is prescribed, petitioner is entitled to file a petition supported by an affidavit stating the ingredients enabling him to get himself declared as an indigent person, and as it is satisfied, petition cannot be rejected on the technical ground alone. The learned counsel also argued that once suit is instituted represented by a counsel, subsequent petition in the suit could be moved only through the counsel, and, therefore, petition cannot be rejected on the ground of non compliance of Rule 3 also.

6. This Court in Sivarajans case considered the order to return an application filed by the plaintiff sub