The requirement for conducting an enquiry into an applicant's financial condition in indigency claims is crucial before rejecting such applications.

J U D G M E N T

This appeal is directed against the order dated

03.09.2024 in I.A.No.5 of 2024 in O.S.No.100 of 2022 of the Additional Sub-Court – III, Ernakulam.

2. By the impugned order, the learned Additional Sub Judge rejected the I.A filed under Order XXXIII Rule 1 of the Code of Civil Procedure seeking permission to prosecute the suit as an indigent person, exempting the appellant from paying the balance court fee and legal benefit fund. The learned Additional Sub Judge noted in the impugned order that from the affidavit filed by the appellant, it was clear that he had 14 cents of land and 5 old cars. The learned Sub Judge concluded that the appellant had sufficiency of funds to pay the court fee and legal benefit fund.

3. Heard the learned counsel for the appellant.

Though service is complete, there is no appearance for the respondents.

4. The learned counsel for the appellant submitted that the learned Additional Sub Judge passed the impugned order without conducting the enquiry. He also submitted that the contention of the appellant that he had no sufficient means to raise funds for remitting the balance court fee and legal benefit fund was not properly considered by the learned Additional Sub Judge. The learned counsel further submitted that property owned by the appellant is mortgaged for availing a loan. He also submitted that the appellant is earning the livelihood by running a driving school. The 5 cars mentioned in the affidavit are used for the purpose of imparting training in driving. He submitted that the appellant had to incur huge expenses for the treatment of his brother after filing of the suit and all his savings were exhausted. He submitted that in view of the said development, the appellant became unable to pay the balance court fee and legal benefit fund. The learned counsel further submitted that if an enquiry was conducted, it would have been come to light that the appellant has no sufficient means to raise funds for paying the balance court fee and legal benefit fund.

5. I have perused the impugned order and pleadings of the appellant.

6. The learned Additional Sub Judge rejected the application without conducting any enquiry. The germane aspect to be looked into while considering an application under Order XXXIII Rule 1 is as to whether the applicant has sufficient capacity to raise funds to remit the court fee. Mere fact that the applicant owns some assets is not sufficient to address the issue as to whether he has sufficient capacity to raise funds to remit the court fee. On perusal of the impugned order, I am of the view that the learned Additional Sub Judge has not considered the application and analysed the case made out therein in a proper perspective. No enquiry was conducted. Therefore the impugned order is set aside. The learned Additional Sub Judge shall consider I.A.No.5 of 2024 in O.S.No.100 of 2022 afresh after hearing the parties. The learned Sub Additional Sub Judge shall pass fresh orders in the I.A as expeditiously as possible. The appeal is disposed of as above.

Sd/-