Point of Law: Mere no objection raised by the other side also is not a ground to allow an application of this nature as payment of court fee is a matter in between the petitioner and the Court involving some procedural formalities also.

JUDGMENT :

This original petition filed under Article 227 of the Constitution of India poses two pertinent questions;

(i) Whether attachment of movables from the house of the petitioner where he has been residing along with family members, in another suit, is a ground to dismiss a petition filed under Order 44 Rule 1 of the Code of Civil Procedure whereby the petitioner sought permission to sue as an indigent person, after holding that the petitioner suppressed possession of said movables without disclosing the same?

(ii) Whether earning status of the spouse and financial capacity of the parents or relatives of the petitioner are grounds to hold that a petitioner in an application filed under Order 44 Rule 1 of the Code of Civil Procedure as a person having sufficient means to pay the required court fee?

2. The petitioner/appellant, who filed Interlocutory Application No.420 of 2019 in A.S.No.31 of 2019 under Order 44 Rule 1 of the Code of Civil Procedure to proceed with Appeal Suit No.31 of 2019 on the file of the Sub Court, Koyilandi as an indigent person has filed this original petition challenging Ext.P12 order whereby the learned Sub Judge dismissed the above application as per order dated 08.10.2021.

3. The respondents in the appeal filed counter and opposed the status of the appellant as an indigent person.

4. After examining the petitioner as PW1, relying on Ext.B1 inventory prepared in E.P.No.64 of 2020 showing attachment of movable from the residential house of the petitioner, the learned Sub Judge passed Ext.P12 order. The learned Sub Judge held that as per Ext.B1 inventory, valuable items worth Rs.1.5 lakh were attached from the house of the petitioner, in another suit, O.S.No.145 of 2016. Further, the learned Sub Judge observed in Ext.P12 that the wife of the petitioner had been working in Food Corporation of India and the parents of the petitioner were having sufficient income to assist the petitioner. Therefore, the learned Sub Judge held that the petitioner cannot be permitted to sue as an indigent person.

5. When the matter is taken for hearing, it is fairly conceded by the learned counsel for the respondents that though some movables were attached from the building where the petitioner has been residing, during execution proceedings in another suit, that by itself is not a reason to hold that the petitioner is not indigent. He conceded further that he has no objection in setting aside the order and permitting the petitioner to proceed as an indigent person so as to have early disposal of the appeal to give a quietus to the litigation in between the parties within a reasonable time.

6. Whereas, the learned counsel for the original petitioner submitted that the petitioner has been residing along with his wife and children and the wife has been employed in Food Corporation of India. Therefore, mere recovery of movable items from the family house by itself is not a reason to hold that the movable properties belong to the petitioner. Therefore, the order is illegal and required to be interfered.

7. Going by the order, it appears that the learned Sub Judge given much emphasis to Ext.B1 inventory to dismiss the petition, apart from observing that the parents and wife were having sufficient money to render assistance to the petitioner.

8. While considering the legality of Ext.P12 order, reference to Order 44 Rule 1 and the provisions under Order 33 is necessary. No doubt, Order 44 Rule 1 enables an indigent appellant to go with an appeal without paying the required court fee and the provisions relating to suits by indigent persons would apply while deciding the application, insofar as those provisions are applicable. Order 33 Rule 5 deals with rejection of an application for permission to sue as an indigent person. Sub Rule (b) of Rule 5 permits the Court to reject an application when the applicant is not an indigent person. But such a power can be exercised either by examining the applicant or his agent, if the Court may thi