Compliance with the requirements under Order 33 Rule 2 CPC is mandatory for an application to sue as an indigent person; failure to disclose all assets leads to rejection of the application.

Dated this the 28th day of July, 2021 Petitioner is the defendant in O.S.No.178 of

2016 on the files of the Sub Court, Irinjalakuda. The suit is filed by respondents 1 to 6 herein for recovery of money from the petitioner and the 7th respondent. On being called upon to pay the balance court fee, the plaintiff’s initially sought enlargement of time for remitting the balance court fee and later filed an application under Order 33 Rule 1 CPC, seeking permission to sue as indigent persons. Overlooking the objections filed by the defendants, the court below issued Ext.P7 order, permitting the plaintiffs to sue as indigent persons. Hence, this original petition.

2. Heard Sri.K.S.Bharathan, learned Counsel for the petitioner and Sri.Santheep Ankarath, learned Counsel for the respondents.

3. The specific contention put forth by the learned Counsel for the petitioner is that Ext.P7 order is bad for non-compliance of the mandatory requirement under Order 33 Rule 2 of CPC. In elaboration, it is submitted that Order 33 Rule 2 stipulates that applications seeking permission to sue as indigent persons should contain the particulars required in regard to plaints in suits and schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof. Attention is drawn to Rule 5 of Order 33, to submit that non-compliance of the mandatory requirement would result in rejection of the application. Referring to Ext.P5 affidavits filed by the plaintiffs in support of their applications under Order 33 Rule 1, it is pointed out that, while value of the movable properties are shown in the schedule annexed to the affidavit, the value of the immovable properties are not shown. It is contended that in spite of this fatal omission being pointed out, the trial granted the permission sought for. Learned Counsel relied on the decision of the Division Bench of this Court in Mathew v. State of Kerala [ 1996 (2) KLT 363 ] wherein, while dilating on the power to reject applications under Order 33 Rule 1, this Court held as follows:

“6. O.33 R.5 deals with rejection of an application for permission to sue as an indigent person. Clause (a) thereof says that the application shall be rejected where it is not framed and presented in the manner prescribed by Rr.2 and 3. Sub-r. (b) calls for rejection where the applicant is not an indigent person. O.33 R.2 clearly provides that every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant with the estimated value thereof shall be annexed thereto and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. In other words, what R.2 contemplates is a scheduling of any movable or immovable property (emphasis supplied) belonging to the applicant with the estimated value thereof. When an applicant does not disclose an asset held by him in his application, whatever be the reason, on the wording of R. 2 of O. 33 of the Code it is clear that the application is liable to be rejected in terms of 0.33 R. 5(a) of the Code. In Vazhunnavar's case, His Lordship Justice Raghavan (as then was) made an exception only in cases where a bonafide omission to include an asset was made by an applicant. .......Under the scheme of O.33 of the Code, a plaintiff is exempted from paying the Court fee that is payable by any other litigant who comes to court for relief at the time of institution of the suit on the ground that he is not in a position to pay the court fee. If a plaintiff seeks such a special privilege to pursue his litigation, is there any reason not to insist on his strictly complying with the requirement of 0.33 of the Code and coming to court with clean hands? According to us, there is no jurisdiction for removing the immunity available to the defendant in a suit and to grant a right to the plaintiff to pro