The main legal point established in the judgment is the valid rejection of the application under Order 33 Rule 5 and the applicability of S.69 of the Cooperative Societies Act to the suit.

RAMAN, J.

1. The petitioners, alleging negligence of duty on the part of respondents 1 to 4 and 6, instituted the suit for compensation. The 4th respondent is a hospital run on the cooperative sector as a co-operative society. The petitioners sought relief as against all the above respondents. They filed an application under Order 33 Rule 5 CPC to file the suit as informa pauperis.

The court below rejected the application under Order 33 Rule 5 on two grounds. One of the grounds is that the schedule of the movable/immovable properties belonging to the applicants, the value of which is not estimated, has not been annexed as contemplated under Order XXXIII Rule 2 CPC, which is a ground available under Order XXXIII Rule 5 (a). The second ground on which the application was rejected is that the allegation made by the plaintiff in the application would show that the suit would be barred in law for the time being in force (Rule 5(f). In this connection, it was held that S.69 of the Cooperative Societies Act clearly bars a suit as against a co-operative society and therefore, the present suit is not maintainable.

2. The appellant contends that as regards the rejection of the application on the ground of non-compliance of Rule 2 is only a defect which can be cured. It is pointed out that a bona fide mistake is rectifiable even subsequently. The appellant places reliance on the Division Bench decision of this court in Mathew v. State of Kerala (1996(2) KLT 363). That is a case where an omission to include an item bona fide was held to be not fatal and such defect could be cured at a later stage. It was held that if, before the final disposal of the application, if the applicant takes steps to include the said item also in the schedule to the application and satisfies the court that the original omission was bona fide, it may be possible to take the view that at the time the application is taken up for disposal, the same had been framed in the manner prescribed by Order XXXIII Rule

2. As already pointed out, it is only a case of inadvertence. But, in terms of Order XXXIII Rule 5(a), the application is liable to rejected if the properties movable or immovable are not disclosed in the schedule to the application. But, as noticed in the above decision, such omission could be supplied, if it is a bona fide omission, before the matter is disposed of. That is why it is stated, if before the final disposal of the application, the applicant takes steps to include that item in the schedule and satisfies the court that the original omission was only bona fide, it may be possible to take the view that at the time the application is taken up for disposal, the same had been framed in the prescribed manner as contemplated under the Order XXXIII Rule 2. As regards the present case is concerned, the applicant did not show in the application the estimated value of the properties disclosed by him. There is no question of any omission because prima facie, it is for him to show that the estimated value of the property in his ownership or possession is insufficient for payment of the court fee. In that view of the matter, probably, it cannot be said that the court below was wrong in rejecting the application under Order XXXIII Rule 5. However, we may add to say that if it is a mere rejection of an application under Order XXXIII Rule 5, it will not visit with any consequence because it is not a refusal to permit to sue as an indigent person and the bar under Order VI Rule 15(2) may not come. Therefore, even if a strict interpretation of Order XXXIII Rule 5 is given, it may be open for the indigent person to rectify the application and represent the same or file a separate application provided it is not barred by the law of limitation. We may only say that Order VI Rule 15 will not come into play.

3. The second objection is regarding the prohibition contained in S.69 of the Cooperative Societies Act. The argument of the appellants is that the words