Mathew and Another vs Fr. Joseph Wadakkan

K.G. Balakrishnan, J.—The Appellants filed a suit for declaration and recovery of possession against the Respondents. The Appellants filed application to permit them to sue as indigent persons. In the affidavit filed in support of the application the Appellants Stated that they had no means to pay the Court fee. The Court below made an enquiry into the matter and came to the conclusion that the Appellants have no means to pay the Court fee. However the permission to sue as indigent persons was rejected by the Court below for the reason that the Appellants have not stated in the affidavit that they had not disposed of any property within two months immediately prior to the filing of the application and that they had not entered into any agreement with reference to the subject matter of the suit and that any other person has not obtained any interest in the subject matter of the suit. Aggrieved by that order the Appellants filed this appeal.

Learned Counsel for the Appellants contended that the Court below erred in rejecting the application. It is pointed out that under Order 33 Rule 5 of the CPC it is not necessary for the applicant to incorporate a plea in the affidavit that the applicant had not disposed of any property within two months immediately prior to the filing of the petition and that the applicant had not entered into any agreement with a third party in respect of the subject matter of the suit. It is contended that these are matters if proved, would entail the dismissal of the application, so the Court can dismiss the application if the grounds mentioned in Rule 5 Order 33 are proved. In this case the Respondent has no case that the Appellants had disposed of any property within two months prior to the filing of the application or that they had entered into any agreement with others in respect of the subject matter of the suit.

It is pertinent to note that Rule 2 of Order 33 states the particulars required to be stated in an application for permission to sue as an indigent person. The Appellants had given the schedule of movable properties belonging to them and the estimated value thereof. There is no case, that the application was not in accordance with Rule 2 of Order 33 Code of Civil Procedure. So in the absence of any allegation or proof that the Appellants had disposed of any property within two months immediately prior to the filing of the application or that they had entered, into an agreement with others regarding the subject matter of the suit, the application was not liable to be rejected. It is for the Respondents to allege and prove that the Petitioners are not entitled to sue as indigent persons for the reason that the Petitioners violated Sub-rules (a), (d) or (g) of Rule 5 of Order 33 Code of Civil Procedure. Though it is issued to incorporate such averments in the affidavit filed in support of an application to sue as indigent person, it is not necessary for the Petitioner to initially allege or prove such negative facts.

The order rejecting the application is not sustainable in law. I set aside the same and direct that the Appellants are allowed to sue as indigent persons in accordance with the provisions contained in Order 33 Rule 5 Code of Civil Procedure.

Appeal is disposed of as above.