Indigence is defined by the inability to raise court fees, not solely by income levels; dismissals based on speculation without factual basis are unjust.

JUDGMENT

Dated this the 27^th day of June, 2025 This appeal is filed challenging the order dated 22.01.2024 of the Sub Court, Sulthan Bathery in O.P.(Indigent) No.2 of 2021.

Appellant was the petitioner in the O.P.(Indigent).

2. Appellant had preferred the O.P.(Indigent) seeking permission to sue as an indigent person for claiming compensation for the loss purportedly caused to him due to the acquisition and withholding of his property by the respondents without payment of compensation for more than 8 years. The amount sought to be realized by the appellant from the respondents was Rs.35,71,277/-. The total court fee payable under Section 22 of the Kerala Court Fees and Suit Valuation Act was Rs.3,04,104/- and the legal benefit fund was Rs.35,713/- also had to be paid. Since the appellant had no means to pay the court fee and the legal benefit fund, he had submitted the application invoking Order 33 of the CPC, drawing it up in the prescribed form and specifying the particulars of his immovable and movable assets and seeking permission to sue as an indigent person. The Subordinate Judge had called for a report from the District Collector, Wayanad, as contemplated in Order 33 Rule 1A and in the said report, it had been reported that the petitioner held no property in Wayanad District. A hearing was conducted and the petitioner was examined as PW1. The Sub Court dismissed the petition filed by the appellant to sue as an indigent person inter alia holding that, though the petitioner had pleaded that he had only plaint A and B schedule properties and that himself and his family had been depending on the income therefrom for their livelihood till its possession was taken by the respondents evicting its occupants, the plaintiff had not explained as to how he had maintained his family thereafter and that there had been no pleadings in the plaint in the said respect. On the said premise, the Sub Court had concluded that the petitioner has failed to prove that he is an indigent person incapable of paying the court fee and dismissed the O.P.(Indigent). The said order of dismissal is challenged in FAO.

3. Heard Sri.Nirmal V. Nair, Advocate, for the appellant and Smt.Rekha C.Nair, learned Senior Government Pleader for the respondents.

4. The learned counsel appearing for the appellant vehemently contended that the impugned order is patently illegal and is capable of perpetrating gross injustice. It is contended that the Sub Court ought to have relied on the report of the District Collector, which categorically stated that the appellant does not have any property of his own. The reason stated by the Sub Court to reject the petition, that the petitioner had not explained how he was surviving and was maintaining his family, is not a valid and proper reason to reject an indigent petition. There is no rule that only an abjectly poor person is entitled to sue as an indigent person, and the proper test is the possession of sufficient means to raise the money required to pay the court fee. The fact that the petitioner may be earning his livelihood is no ground to justify a rejection of the plea made under Order 33 Rule 1. There has been no material suppression of facts, and the Collector had also not reported that the petitioner was earning sufficient income from the property leased by him to enable him to pay the court fee. The findings of the Sub Court were based on conjectures and surmises and without a proper appreciation of the facts and the law. Reliance was placed on the dictum laid down by this Court inThankamani and others v. Vijayadharan [2021(5) KHC 395] andMuraleedharan Nair v. P. Usha Kumari [2022 KHC 1053] . He thus prays that the order may be set aside a