P.J.Mary v. Job Varkey

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE SUNIL THOMAS THURSDAY, THE 2ND DAY OF JULY 2015/11TH ASHADHA, 1937 FAO.No. 378 of 2012 () ----------------------- AGAINST THE ORDER IN IOP 1/2010 of PRINCIPAL SUB COURT,ERNAKULAM APPELLANTS/PETITIONERS:

----------------------- P.J.MARY AGED 70 YEARS D/O.LATE JOSEPH, VELIYILPARAMBIL HOUSE UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, ERNAKULAM. BY ADVS.SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.R.V.RAHUL SRI.CHERIAN SEBASTIAN RESPONDENTS/RESPONDENTS:

-----------------------

1. JOB VARKEY, AGED 48 YEARS S/O.VARKEY, POTTAYIL HOUSE, THIRUMARADY VILLAGE NORTH MARADI P.O., MUVATTUPUZHA TALUK ERNAKULAM DISTRICT 686673.

2. MARY BENJAMIN, AGED 50 YEARS W/O.BENJAMIN, POTTAYIL HOUSE, NEAR KANIYAMPUZHA BRIDGE EROOR, TRIPUNITHURA, ERNAKULAM-682306.

3. RANJITHMON K.R., AGED 36 YEARS S/O.K.C.REJIMON, KALAPADAKKAL HOUSE, BUND ROAD VTJ ENCLAVE, VI/472-1, MARADU P.O.

PIN 682304, ERNAKULAM.

4. K.R.LATHA, AGED 32 YEARS W/O.PEETHAMBARAN, 50/1628, BLAVATH HOUSE JANATHA ROAD, VYTTILA, ERNAKULAM CHN-682019.

5. RANI, AGED 46 YEARS W/O.GOPI, PURETHEPPADI HOUSE, MARADU P.O.

KANAYANNOOR TALUK, PIN 682304.

FAO.No. 378 of 2012

6. FRANCIS SALES D'COSTA, AGED 46 YEARS S/O.FRANCIS D'COSTA, ASTHAKODATHPARAMBIL HOUSE BEAUFOT, MARADU DESOM, KANAYANNOOR TALUK MARADU P.O., PION 682304.

R6 BY ADV. SRI.K.REGHU KOTTAPPURAM R5 BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) R4 BY ADV. SRI.N.RAGHURAJ R4 BY ADV. SMT.K.AMMINIKUTTY R3 BY ADV. SRI.V.PHILIP MATHEW R2 BY ADV. SRI.S.EASWARAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

"CR"

THOTTATHIL B. RADHAKRISHNAN & SUNIL THOMAS, JJ.

- - - - - - - - - - - - - - - - - - F.A.O. No.378 of 2012 - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2015

JUDGMENT

Thottathil B. Radhakrishnan, J.

Heard.

2.

This appeal is against an order by which the court below refused to grant leave to the appellant to sue as an indigent.

3.

The suit is one seeking a declaration impeaching a sale deed and also for consequential reliefs of recovery of possession, injunction etc. What has been found by the court below is that amounts are lying in fixed deposit. That amount is the consideration for the transaction which is impeached in the suit and, hence, a matter in dispute in the suit. We may also note that if the plaintiff were to withdraw that amount, that may be against her interest in prosecuting the suit as against the transaction which she impeaches. Therefore, that

F.A.O.No.378/2012 amount cannot be reckoned to determine the income for the purpose of adjudicating an application under Order XXXIII Rule 1 CPC. Hence, the application filed by the appellant before the court below for leave to sue as an indigent was liable to be allowed.

In the result, this appeal is allowed setting aside the impugned order and allowing IOP.No.1 of 2010 of the Sub Court, Ernakulam. The court below shall number the suit and proceed with it in accordance with law. The parties are directed to mark appearance before the court below on 18.09.2015. Sd/- THOTTATHIL B.RADHAKRISHNAN Judge Sd/- SUNIL THOMAS Judge dpk /true copy/ PS to Judge.