KOLANCHERI VIJAYAN Vs. PRAKASAN C.K.

JUDGEMENT

(1.) The petitioner in I.A.No.3290 of 2017 in A.S.No.188/2018 on the files of the District Court, Kozhikode, is the appellant in this case, wherein, he impugns the order therein, rejecting his request to permit him to prosecute the appeal in forma pauperis; along with the order of the said Court in I.A.Nos.2267/2019 and 2268/2019 in the aforementioned I.A, as per which his request for permission to amend the schedule of properties has also been rejected.

(2.) According to the appellant, at the time when he moved his application under Order XLIV Rules 1 and 3 of the Code of Civil Procedure (CPC for short), seeking leave to present the appeal in forma pauperis, he had omitted to include 10.6 cents of land owned by him and his wife in Muttambalam Village in Kottayam Town and that this was only a bona fide omission. He says that when he, therefore, attempted to amend the application through I.A.No.2267/2019, filed along with I.A.No.2268/2019 praying for re-opening evidence in the main application, they were both rejected by the First Appellate Court solely for the reason that the said application had been preferred belatedly and after the main application under Order XLIV Rule 1 of the CPC, namely I.A.No.3290/2017, had been taken for orders. The appellant thus prays that this appeal be allowed and the impugned orders be set aside.

(3.) In response to the submissions on the afore lines made by Sri.Manjeri S. Sunder Raj, learned counsel appearing for the appellant, Sri.T.Sethumadhavan, learned Senior Counsel, instructed by Sri.Balagopal, learned counsel for the 1st respondent, submits that the impugned orders of the First Appellate Court is without error, since the fact that the appellant has himself filed an application to amend the schedule appended to his application preferred under Order XLIV Rule 1 of the CPC would establish that necessary particulars had not been furnished therein; and consequently that, going by Order XXXIII Rule 5 of the CPC, the said application can only be rejected. The learned Senior Counsel vehemently submitted that the omission of the appellant to show 10.60 cents of land in the schedule of properties cannot be seen to be an omission but only a deliberate design, because his client has preferred objections to the application at the first instance, contending that this property had not been disclosed by the appellant and further that even though the appellant had also given evidence as PW1 touching upon this property, he had made no attempt to amend the schedule to the application until it was taken for orders. The learned Senior Counsel says that, as is clear from the findings of the First Appellate Court in paragraph No.6 of the order in I.A.No.2267/2019, the application preferred by the appellant under Order XLIV Rule 1 of the CPC was filed on 27.07.2018 and PW1, namely the appellant herein, was examined and cross examined on 12.06.2019 and on 24.07.2019 respectively. The learned Senior Counsel says that the evidence of the appellant was closed on 19.08.2019 and that the matter was listed repeatedly and adjourned at least on two occasions, to be heard finally on 28.09.2019 and was thus taken for orders on 05.10.2019. He says that it is only thereafter that the appellant filed the application for amendment and therefore, that the Court has correctly found that it was not a mere omission in not showing the 10.60 cents of land in the application, but that it was deliberately done to keep away the truth from it.