IN THE HIGH COURT OF KERALA AT ERNAKULAM FAO.No.

184 of 2010()
1. ALEX A.VARGHESE, S/O.M.A.ALEX,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE CHAIRMAN, KERALA STATE ELECTRICITY
3. THE CHIEF ENGINEER (TRANSMISSION) SOUTH,
4. THE DEPUTY CHIEF ENGINEER(TRANSMISSION
5. THE MANAGER, VIJAYA BANK, PB NO.197, For Petitioner :SRI.S.MOHANAN
For Respondent :SRI. ASOK M.CHERIYAN, SC, KSEB The Hon' ble MR. Justice THOTTATHIL
B.RADHAKRISHNAN The Hon'ble MR. Justice S.S.SATHEESACHANDRAN Dated :30/07/2010
O R D E R
THOTTATHIL B.RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
------------------------------------------- F.A.O.No.184 OF 2010
------------------------------------------- Dated this the 30th day of July, 2010
JUDGMENT
"C.R."
Thottathil B.Radhakrishnan, J.
1.The plaintiff in a suit for recovery of money, for permanent injunction and certain incidental reliefs is the
appellant. He was awarded a contract by the Kerala State Electricity Board. Alleging breach by him, the
Board rescinded the contract by issuing a decision terminating it. Plaintiff challenges that termination and the
consequential decision of the KSEB authorities to have the work re-arranged at his risk and costs. He also
seeks recovery of money allegedly due to him under that contract.
2. Plaintiff paid 1/10th of the court fee due at the time of institution of the suit. After the written statement was
filed FAO.184/10
2
Alex A.Varghese, S/O.M.A.Alex vs Kerala State Electricity Board on 30 July, 2010
Indian Kanoon - http://indiankanoon.org/doc/360889/ 1
and issues framed, the court below posted the case for payment of balance court fee. It appears that few
adjournments were given for that purpose. Then, the appealing plaintiff sought an order permitting him to
continue the suit by suing as an indigent person in terms of Order XXXIII Rule 1 of the Code of Civil
Procedure on the ground that he does not have sufficient means to pay balance court fee. The court below,
without stating any reason, "rejected" that application. This is what we find from the certified copy of the
impugned order. Since the word "rejected" was used in the impugned order, we called for a report from the
court below. The report shows that the application to sue as indigent was dismissed and as a consequence, the
plaint was rejected. The report discloses that before the plaintiff sought leave to continue the suit by suing as
an indigent, the suit was posted on three or four occasions for payment of balance court fee. But, the rejection
of the application for leave to sue as an indigent person is not accompanied by any statement of reason for that
decision.
FAO.184/10
3
3. The whole object of making provisions for permission to sue as indigent is part of the social objectives in
terms of the Constitutional goals, in particular, the concept of socialism. This constitutional value is
abundantly reflected by the seminal equality principle enshrined in Article 14 of the Constitution guaranteeing
that the State shall not deny to any person equality before the law and equal protection of the laws, as also, the
guiding beacon in Article 39A, among the Directive Principles of State Policy, that the State shall secure that
the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular,
provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities. None is to be
deprived of access to the justice delivery system on account of lack of funds to pay court fee. This is well
reflected even from the provisions in Order XXXIII. Rule 18 provides FAO.184/10
4
that the State may even make provisions as it thinks fit to provide free legal services to those who have been
permitted to sue as indigent persons. Rule 10 provides that where the plaintiff succeeds in the suit the court
fee which would have been payable by the plaintiff, had he not been permitted to sue as an indigent person,
shall be recoverable from any party ordered by the decree to pay it. We take note of these provisions in Order
XXXIII itself to note that the law does not contemplate a person being left in the lurch, if he is incapable of
suing solely on account of his economically challenged status. This constitutional vision, which lies
embedded in the form of beneficial provisions in the statutory rules in hand, has to be given effect to while
considering the request made for relief in terms of the provisions of Order XXXIII of the Code. 4.In terms of
the law as it now stands, the entire court fee due on a plaint, memorandum of appeal, counterclaim or
memorandum of cross objections need not be paid at the time FAO.184/10
5
of institution. A plaintiff is obliged to pay only 1/10th of the entire court fee due at the institution of the suit,
in terms of Kerala Court Fees and Suit Valuation Act, 1959, (Act X of 1960), hereinafter referred to as the 'CF
Act'. The balance need be paid only following settlement of issues. Therefore, it is only at that point of time
that his liability to pay the balance of fee arises. Hence the phrase "a suit may be instituted by an indigent
person" in Rule 1 of Order XXXIII of the Code in relation to payment of balance court fee would arise only at
that point of time. Therefore, an application under Order XXXIII Rule 1 of the Code would lie in relation to
payment of the balance court fee due. This principle applies to suits, appeals and other proceedings under the
Code for which the whole of the court fee payable under the CF Act is not payable at the time of institution.
Alex A.Varghese, S/O.M.A.Alex vs Kerala State Electricity Board on 30 July, 2010
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5. In the case in hand, the plaintiff had paid 1/10th of the court fee while instituting the suit. Following written
statement, FAO.184/10
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issues were settled and the case was posted for payment of balance court fee. It was at that stage that he came
forward with the case of indigence. May be that he filed the application only after two or three postings for
payment of balance court fee. But that does not deprive him of the entitlement under law to make an
application seeking permission to sue as indigent, if he is entitled to sue as an indigent and satisfies the
conditions prescribed for invoking the provisions of Order XXXIII of the Code. But, that does not ipso facto
mean that an application for permission to sue as an indigent person could be used as a ruse to drag on a
litigation when such applications are filed after the case is trialled with orders "no further time", "last chance"
etc. for payment of court fee. The person then seeking permission to sue as indigent should also show that he
is making a bonafide request and under circumstances which call for an order in his favour, he has to
demonstrate to the satisfaction of the court that the request is bonafide and not merely one intended to get
FAO.184/10
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adjournment. This aspect of the matter will also have to be borne in mind by the court while looking into the
request for permission to sue as indigent. However, the court is bound to enquire into the request in terms of
the provisions prescribed for such enquiry in Order XXXIII.
6.The court can reject an application on grounds enumerated in Rule 5. After the enquiry and hearing in terms
of Rule 7, the court shall either allow or refuse to allow the applicant to sue as an indigent person. In terms of
that rule, the applicant is entitled to tender evidence, including by the examination of witnesses. The court has
to hear arguments which the parties may decide to offer on the question for decision. An order rejecting or
refusing the application can be challenged before the superior courts. Not only that, it being an order adverse
to the interest of the person who made the application, he is entitled to know the reasons for the rejection or
refusal. Therefore, the court is bound to accord reasons for its decision in that regard. Hence, when an
application to sue as an FAO.184/10
8
indigent is filed, the court has to necessarily go into the issue regarding the alleged indigence and decide on
that issue. Without that point being decided, it would be a case of non- exercise of jurisdiction if the
application to sue as an indigent is rejected, even if such rejection is made on account of the fact that the case
stood posted with an order of no further time for payment of the balance court fee.
7.For the aforesaid reasons, the impugned order rejecting the application of the plaintiff to sue as an indigent,
as regards the payment of the balance court fee, is liable to be vacated. The court below has to take up the
application for enquiry and decision in accordance with law.
8.As already noticed, the report from the court below discloses that the plaint also stands rejected as a
consequence. In terms of Order XXXIII Rule 15A, while rejecting or refusing an application under Order
XXXIII, the court can grant time for payment of court fee. Rule 15A is couched in such terms that
FAO.184/10
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it fundamentally recognizes the power of the court to adjourn a case for payment of balance court fee and
then, indicates that nothing in the other rules would abridge that power of the court. Therefore, the thrust of
Alex A.Varghese, S/O.M.A.Alex vs Kerala State Electricity Board on 30 July, 2010
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the said Rule is that whenever a court rejects an application to sue as an indigent, it shall adjourn the case to
afford the plaintiff an opportunity to pay the balance court fee. In this view of the matter, we are clear in our
mind that the rejection of the plaint as a consequence of the rejection of the application to sue as an indigent
person is also without jurisdiction. Ends of justice require that the said rejection of plaint is also interfered
with in exercise of supervisory jurisdiction under Article 227 of the Constitution. For the aforesaid reasons,
we set aside the impugned order on I.A.1302/10 and direct the court below to take up that interlocutory
application, provide opportunity of hearing to the parties and decide on the application in accordance with
law. We, also, set aside the rejection of the plaint in O.S.472/07 of the court below and order that by the force
of this judgment, FAO.184/10
10
the said order of rejection will stand set aside and the plaint will be treated as back on the file of the court
below; further consideration of which will depend upon the outcome of I.A.1302/10. The appeal is ordered
accordingly. No costs. Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
Sd/-
S.S.SATHEESACHANDRAN,
Judge.
kkb.31/07.
Alex A.Varghese, S/O.M.A.Alex vs Kerala State Electricity Board on 30 July, 2010
Indian Kanoon - http://indiankanoon.org/doc/360889/ 4