PALAKKIL PUTHIYAMALIYEKKAL ABDUL RAZAK Vs. P.K. SALEEM

JUDGEMENT

(1.) This petition has been filed to permit the petitioner to prosecute the accompanying Regular First Appeal as as indigent person. The petitioner is the defendant in O.S. No. 715 of 2011 on the file of the Sub Court, Kozhikode. The suit was filed for the specific performance of a contract.

(2.) The learned counsel for the petitioner contended that the court below, on an erroneous application of facts, law and evidence to the case, decreed the suit by ordering specific performance. Now the respondent has filed an application for executing the decree. The specific case of the petitioner is that he has not received any such amount from the respondent as alleged in the plaint. He has also submitted that if the application is proceeded with, he will be put to irreparable loss and prejudice. The total jurisdiction value shown in the court below is Rs. 45,00,500.00 and the court fee paid thereon was Rs. 3,78,440.00. As per Sec. 52 of the Kerala Court Fees and Suits Valuation Act, he has to pay the same court fee that was paid in the court below in the above appeal also. He has further submitted that he has no sufficient means to pay the required court fee to prosecute the appeal. He has argued that he has not sold any property within two months and he has not entered into an agreement with any person to finance the litigation. The movable and immovable properties of him are scheduled in the petition.

(3.) The respondent has filed a counter affidavit stating that the petitioner has approached this Court with mala fides and his attempt is to mislead this Court. The petitioner earlier approached this Court by filing R.F.A. No. 179 of 2016 in respect of the very same subject matter by remitting the entire court fee and the same got returned since the matter was remanded to the trial court for re-consideration and this fact has been wilfully suppressed in the affidavit. The petitioner is holding immovable properties to the tune of Rs. 75,00,000.00approximately. Further he is running a hotel business which derives huge profit. The petitioner has suppressed the records, including the business accounts and statement of accounts from this Court. In fact the petitioner is holding Rs. 30,00,000.00, which was accepted as advance sale consideration. The filing of the above appeal is only a futile exercise which is being done by the petitioner and it cannot be shouldered at the cost of the State. It is also to be noted that the petitioner is paying Rs. 7500.00 per month as rent. It is also stated that the report filed by the State is not conclusive in the absence of a valid enquiry and details with regard to the financial status of the petitioner. It is further stated that the petitioner has wilfully suppressed the material facts from this Court and therefore, he prays for the dismissal of the petition with exemplary costs.