D SUNDARESAN Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is the plaintiff in OS No. 389 of 2003, on the file of Sub court, Thiruvananthapuram. The suit was instituted for realisation of Rs. 1,12,54,929/-, being the damages sustained in executing the agreement as the Contractor. The total court fee payable is Rs. 67,47,543/ -. The suit was instituted by paying Rs. 88,600/- being 1/10th of the court fee payable. Subsequently, petitioner filed Ext. P2 petition under O. XXXIII of R. 1 of Code of Civil Procedure to exempt him from paying the balance court fee for the time being, contending that owing to the present financial constraints, he is not in a position to raise sufficient money for paying the balance court fee. That was filed as a petition supported by an affidavit. In the affidavit, petitioner disclosed his assets which are only the dresses and wearing apparels. Under Ext. P4 order, learned Sub Judge rejected application directing the petitioner to file a petition as provided under O. XXXIII of Code of Civil Procedure for declaring him an indigent person, or to pay the balance court fee and making it clear that if not, plaint will be rejected as provided under R. 11 (c) of O. VII of Code of Civil Procedure.

(2.) THE learned counsel appearing for petitioner and learned Government Pleader were heard.

(3.) THE learned counsel appearing for petitioner argued that R. 2 provides for an application for permission to sue as an indigent person, and once the suit is instituted by presenting the plaint and paying 1/10th of the court fee, a subsequent petition cannot be filed, as provided under R. 2 and as no other form is prescribed, petitioner is entitled to file a petition supported by an affidavit stating the ingredients enabling him to get himself declared as an indigent person, and as it is satisfied, petition cannot be rejected on the technical ground alone. THE learned counsel also argued that once suit is instituted represented by a counsel, subsequent petition in the suit could be moved only through the counsel, and, therefore, petition cannot be rejected on the ground of non compliance of R. 3 also.