MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is by the plaintiff. He filed a suit for settlement of accounts and for damages. The relief of accounting was valued at rs. 15,000/- and the nominal damages was estimated as Rs. 1,000/- and court fee was paid under S. 35 (1) and S. 22 of the Kerala Court Fees and Suits Valuation act. The second defendant Kerala Financial Corporation filed a written statement disputing the plaint claim. The 8th defendant who was impleaded subsequently as a purchaser in revenue auction of some property belonging to western Ghats Industrial Development Corporation of which the plaintiff and defendants 5 to 7 were said to be partners, also filed a written statement.

(2.) ON 11. 10. 1994 the plaintiff made two applications. I. A. 1041 of 1994 was made seeking an amendment of the plaint to incorporate a claim for recovery of damages to the tune of Rs. 2,62,542. 80 with interest thereon and to set aside the sale of 2. 50 acres of land belonging to the plaintiff and blocked in R. S. 260/3b of Vemomamsom. In view of these additional prayers the plaintiff wanted to amend the valuation portion of the plaint to include the claim for damages of Rs. 2,62,542 and valued the relief of setting aside the sale at Rs. 2,65,000/ -. Valuation for the purpose of jurisdiction and court fee including the original valuation of Rs. 15,000/- for the relief of accounting was thus proposed to be enhanced to Rs. 5,42,512. 80. Court fee payable thereon was to be Rs. 41,420. Giving credit to the court fee already paid on the plaint namely Rs. 1,580/-, the balance court fee payable by the plaintiff as per the proposed amendment was Rs. 39,840/ -. The other application i. A. 1q66 of 1994 was filed under 0. 33r. 1 of the Code of Civil Procedure seeking permission to prosecute the suit as an indigent person if the amendment of the plaint prayed for were to be allowed. Both the applications were opposed. ON 28. 3. 1995, the application for amendment of the plaint I. A. 1041 of 1994 was allowed. The application I. A. 1066 of 1994 for permission to further prosecute the suit as an indigent person was disallowed finding that the relief claimed by the plaintiff in the plaint as amended was one for and on behalf of a firm of which he was a partner and since it was not shown that all the partners of all the firm are indigent persons, the plaintiff could not be given permission under O. 33 R. 1 of the Code of Civil Procedure. It was also found that the plaintiff while making the application under O. 33 R. 1 of the Code and had not set out in full the assets held by him either in his individual capacity or as a partner of a firm and in view of the failure to disclose the properties, he was disentitled to the permission sought for. This is challenged before us by the plaintiff.

(3.) LEARNED counsel for the appellant relying on the decision in K. Vazhunnavar v. V. Vazhunnavar (1963 KLT457) and the decision mkunju Raman v. United India Fire and General Insurance Company (1976 KLT 620)contended that the failure to disclose a particular asset or property in the application for permission to sue as an indigent person by itself is not fatal to an application for permission to sue as an indigent person. Hg pointed out that the decision of the Madras High Court in Chellarnmal's case as reported in chandrasekharan's case was not accepted by Mr. Justice Raghavan (as he then was) in Vazhunnavar's case and that the subsequent decision of the Madras High court have been relied on to lay down that the ground of suppression of assets must be confined to cases where the suppression is deliberate and not bonafide. His Lordship also referred to the decision of the Calcutta High Court in Madan mohanlal Kapana v. Jhalman Singh (AIR 1954 Cal. 89) in support of that proposition. In Kunju Raman's case, His Lordship Justice G. Viswanatha Iyer after making a survey of the various authorities referred to therein came to the conclusion that a mere non-inclusion of some assets which if included would not have established that the appellant is not a pauper should not entail a rejection of the application. If any such item is subsequently disclosed in the course of the proceedings, its value should also be taken into account and a finding recorded whether the applicant is a pauper or not only under R. 5 (b) of 0. 33 of the Code.