UNNIKRISHNAN Vs. RUGMINI

JUDGEMENT

(1.) PETITIONER in O.P. No. 88 of 1995, on the file of the Family Court, Ernakulam, is the appellant. He challenges the order passed by the Family Court rejecting his application for leave to sue as an indigent person under O.33 of the Code of Civil Procedure. The suit proposed to be filed is one for a decree of declaration that the plaint schedule properties belong to the petitioner and also for an injunction against commission of waste and alienation by the respondent, who happens to be estranged wife of the petitioner/appellant. The suit properties are valued at Rs. 10,35,751.75/-. The court fee payable thereon is Rs. 76,381/-.

(2.) IT is contended by the appellant that the movable and immovable properties mentioned in the plaint are worth only Rs.72,000/- and therefore he has no sufficient means to pay the prescribed court fee. The respondent resisted the petition by stating that the appellant has sufficient means and is able to pay the required court fee.

(3.) LEARNED counsel for the appellant has contended that there is no rule under O.33 of the code of Civil Procedure prescribing that a person should sell his property and pay court fee to save another property. The Family Court failed to notice that a competent civil court has already found that the appellant is an indigent person. The findings in the present case and that of the other court are contradictory. The court below has failed to appreciate the relevant principles of law in holding that the appellant is a person who is possessed of sufficient means to pay the court fee.