1. Appellant is the plaintiff in O.S.No.59 of 2023 of the Sub Court, Ernakulam. The suit was filed to recover an amount of Rs.12,50,51,989/- with future interest at the rate of 18% per annum from the respondent and for other allied reliefs. The appellant paid Rs.1,96,900/- as one-tenth of the court fee and Rs.1,25,060/- as one-tenth of the legal benefit fund while filing the suit. The balance court fee payable is Rs.17,72,020/- and the balance payable towards legal benefit fund is Rs.11,25,460/-.

2. According to the appellant, a practicing lawyer, he met with an accident after filing the suit. He was bedbound for a long time after undergoing a surgery. I.A.No.9/2024 was filed through his counsel for permission to prosecute the suit as an indigent person since he could not raise sufficient funds to pay the balance court fee and LBF. Later, I.A.No.15/2024 was filed by the appellant himself for the same relief. It is explained by the appellant that the second application was filed after his condition improved and he was in a position to travel to the court to present the application.

3. The appellant stated in the affidavits filed before the Sub Court that he owns 2.966 cents of land comprised in Sy.No.8/16 of Edappally South Village worth Rs.20,00,000/-. He further states that it is not practical to sell the said property to raise funds to pay the balance court fee. He further stated that though he owns a car, the same was purchased by availing a loan from SBI and he is paying Rs.14,685/- every month towards repayment. He also revealed that in his savings bank account maintained with Dhanlaxmi Bank, Bar Council Branch, an amount of Rs.2,93,033/- was outstanding as on 17.7.2024. He further narrated that the rent payable per month for his office room is Rs.7,500/-, and that he is paying Rs.10,000/- each to a typist and an advocate clerk per month. He stated that during the financial year 2022-23 corresponding to the assessment year 2023-24 he had a total income of Rs.15,85,450/-. Further, he stated that during the financial year 2023-24, corresponding to the assessment year 2024-25, he had only a lesser income than that of the previous year. He submitted that he had no other assets or savings and hence he was not in a position to raise sufficient funds to pay the balance court fee.

4. During the inquiry by the court the appellant adduced evidence as PW1. Exts.A1 to A4 and a third-party Exhibit, Ext.X1 were marked. The learned Sub Judge heard the respective counsel for the parties and by the impugned common order dated 10.4.2026 rejected the applications of the appellant. Aggrieved by the same this appeal was filed.

5. Elaborately heard the learned counsel for the appellant and the learned counsel for the respondent.

6. The learned counsel for the appellant submitted that the impugned order is perverse and unsustainable. He submitted that the appellant instituted the suit with the bonafide belief that he will be in a position to pay the entire court fee. Nevertheless, he met with a serious accident after filing the suit. He was bedridden for a considerable period and could not pursue profession. This resulted in drastic reduction in his professional earnings. Thus, he was incapacitated from raising funds to pay the balance court fee. As the appellant was not in a position to travel to the office of the court to present the application for permission to prosecute the suit as an indigent person, I.A.No.9/2024 was presented through the counsel. When his condition improved, I.A.No.15/2024 was presented by him.

7. The learned counsel pointed out that only property owned by the appellant is revealed in the affidavit. He submitted that the pathway to the residential building owned by the wife of the appellant, wherein they live, is through the property of the appellant. Therefore, the said property cannot be parted with for raising funds to remit the balance court fee. The bank balance of the appellant is also a meagre amount. Professional income was also inadequate. He hence contended that the case is a fit one for granting permission to prosecute the suit as an indigent person. Regarding the objections raised by the respondents, the learned counsel argued that payment of court fee is a matter between the litigant and the State and the opposite party has no say in the matter. He referred to various provisions under Order XXXIII and submitted that if the suit is decreed, the court fee can be recovered from the decree amount. He also referred to the provisions providing for recovery from the litigant or legal heirs. He hence submitted that the contentions of the respondents are therefore not liable to be taken into account.

8. The learned counsel assailed the impugned order by contending that the learned Sub Judge misdirected herself in passing the order. He submitted that the learned Sub Judge proceeded on the assumption that an application filed subsequent to the institution of the suit for permission to sue as an indigent person is not maintainable. He also argued that the learned Sub Judge erred in rejecting the application for the reason that the appellant is an income tax payee and there was no averment in the plaint regarding the financial status. The learned Sub Judge committed an error by proceeding under the impression that the plea of not having sufficient means cannot be accepted if the applicant has assets. He relied on the following judgments:-

                  1) Sundaresan v. State of Kerala [2008 SCC OnLine Ker 299].                   2) Balakrishnan v. Narayanan Nair [1983 SCC OnLine Ker 210].                   3) Kamalamma v. Karthiyayani [1972 SCC OnLine Ker 79].

                  4) A. Prabhakaran Nair v. K.P. Neelakandan Pillai [1987 SCC OnLine Ker 46].

                  5) Xavier v. Kuriakose [1987 SCC OnLine Ker 183].

                  6) Babu v. Banumathy Menon and another [2005 SCC OnLine Ker 5].

                  7) Paulose @ Paulo v. Elias K. Varghese [2012 SCC OnLine Ker 3858].

9. In Sundaresan (supra) a learned Single Judge of this Court held that even if a petition for permission to continue to prosecute the suit as an indigent person is filed after institution of the suit, the same can be maintained. Reference to the following paragraph is relevant:-

                  “8. O. XXXIII of Code of Civil Procedure though provides for withdrawal of permission to sue as an indigent person originally granted as provided under R. 9, does not provide for prosecution of a suit instituted by paying part of the court fee, as an indigent person. But when Kerala Court Fees and Suits Valuation Act provides for institution of suit by payment of 1/10th of the court fee payable and provide for payment of balance court fee only after settlement of issues, it cannot be said that if a plaintiff who had paid 1/10th court fee and subsequently became an indigent person is not entitled to seek permission to continue to prosecute the suit as an indigent person, if in fact he subsequently became an indigent person. But for granting permission to prosecute the suit as an indigent person, plaintiff has necessarily to file a petition as contemplated under O. XXXIII of Code of Civil Procedure. Under R. 2, the application for permission to sue shall contain the required particulars and that petition shall be signed and verified in the manner prescribed for pleadings. Therefore, even if subsequent to the filing of the plaint, a petition is filed seeking permission to continue to prosecute the suit as an indigent person and at that stage, particulars required in the plaint in the suit may not be pleaded, it is mandatory under R. 2, that application should contain any movable or immovable property belonging to the applicant, and estimated value thereof which shall be annexed to the petition, such petition shall be signed and verified in the manner prescribed for signing and verification of pleadings. R. 3 mandates that such application shall be presented to the Court by the applicant in person, unless he is exempted from appearing before the court, in which case, it could be presented by an authorised agent who can answer the material questions relating to the application and who may be examined in the same manner as the party represented by him might have been examined, had such party attended in person. Under cl. (a) of R. 5, a petition not framed and presented in the manner prescribed by Rr. 2 and 3 shall be rejected. Hence, Ext. P4 order rejecting the application is perfectly legal and valid. The petition was not signed and verified in the manner prescribed for signing and verification of pleadings as contemplated under R. 2. The petition was not presented by the applicant in person as provided under R. 3. Therefore, the petition supported by an affidavit, which is not in conformity with R. 2 and was filed by the counsel, and not presented by the party in person are neither framed nor presented in the manner prescribed under Rr. 2 and 3. Therefore, it shall be rejected by the court as mandated under R. 5(a). In such circumstances, I find no illegality or irregularity in the impugned order passed by the learned Sub Judge.”

10. Much earlier, a Division Bench of this Court, in Balakrishnan (supra) specifically dealt with a question as to whether an application under Order XXXIII can be filed by a person after the institution of the suit. The Division Bench decided in the affirmative. Relevant discussion in the judgment is extracted hereunder:-

                  “4. There is nothing in Order 33 of the Code of Civil Procedure which shows that an application under this Order should be filed before the institution of the suit and should not be filed after the institution of the suit. Counsel for the petitioner was also not able to point out any rule prohibiting filing of an application under this Order after the institution of the suit. The main argument of counsel for the petitioner is that the trial court after having directed the plaintiff to pay the deficit court fee should have rejected the plaint as contemplated under Order 7 Rule 11 as the plaintiff failed to pay the court fee as directed by the court. It is true that Rule 11 of Order 7 says that the plaint shall be rejected in the cases referred to in clauses (a) to (d) therein. In clause (c), where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so, the plaint can be rejected. Rule 13 states that the rejection of the plaint on any of the grounds mentioned in Rule 11, shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. If really the plaintiff is entitled to be declared or treated as indigent person under Order 33, there is no reason why he should be made to suffer the rejection of the plaint under Rule 12 of Order 7 and then make hint to file a suit under Rule 13 along with a petition under Order 33. These Rules are intended to advance justice and prevent miscarriage of justice. It is not fair or proper to deny substantial justice on purely technical ground or grounds. This apart, as stated earlier, there is nothing in any of the rules under Order 33 which either expressly or impliedly prohibits the filing of an application under the said Order after the institution of the suit. Under Rule 9 of Order 33, the defendant or the Government Pleader is at liberty to file an application and get an order that the plaintiff is a pauper. It is true that an enquiry on the question whether the plaintiff is a pauper is not exclusively a matter between the plaintiff and the State. But the question whether proper court fee is paid on the plaint is primarily a question between the plaintiff and the State. (See Vasu v. Chakki Mani (AIR. 1962 Ker. 84), Nomi Chand v. Edward Mills Co. ((1952) 2 SCC 409 : AIR. 1953 SC. 28), Ratnavarmaraja v. Smt. Vimala, (AIR. 1961 SC. 1299) and Hydrose v. Makkar (1983 KLT. 166).

                  5. Counsel for the petitioner was not able to place any decision of this Court in support of his contentions. Counsel for the respondent relied on a decision of the Madras High Court in Bava Sahib v. Abdul Ghani (AIR. 1933 Mad. 498). This is a decision exactly on the point. There a plaint was filed on payment of court fee which was found insufficient by the trial court which ordered the plaintiff to pay the deficit court fee on a date fixed by it. On the last day of the date so fixed, the plaintiff filed an application to continue the suit as a pauper. The trial court rejected the application on the ground that the plaintiff not having paid the court fee as ordered the plaint stood rejected and there was no plaint to be continued. The application therein having filed at a time before the plaint could be rejected, a Division Bench of the Madras High Court held that it is open to a party who had filed a suit paying court fee to continue it as a pauper and it is open to the plaintiff to ask the court to continue his suit as pauper. Construing the relevant rule under Order 33 it was held that the relevant rule only means that the proper method is to institute a suit and that the plaintiff should have been a pauper at the time when the suit is filed. A Division Bench of the Madras High Court in Subbarao v. Venkataratnam (AIR. 1929 Madras 828) allowed the plaintiff to continue the suit as informa pauperis eventhough the application was filed after the filing of the plaint with inadequate court fee.”

                  [ Emphasis added ]

11. The next limb of the arguments advanced by the learned counsel for the appellant is with respect to the germane aspect, sufficient means to pay the court fee. The learned counsel submitted that consistent view of this Court in this regard as explained in various judgments is that an indigent person need not be one without any material possessions of value. In this regard it is apposite to take note of the law laid down in various reported judgments rendered by this Court.

12. In Kamalamma (supra) a learned Single Judge of this Court held as under:-

                  “8. On a careful consideration of the whole matter, I find that the courts below have not made a practical approach to the question and that factors which are really material and relevant for determining the capacity of the petitioners to pay the court fee have not been taken into account. I, therefore, remand the matter to the trial court for a fresh disposal after making due enquiry giving full opportunity to the contesting parties to let in evidence. While it should not be the attempt of any party coming to the court to evade payment of court fee on the pretext that such party is pauper, the court has also a duty to ensure that in no genuine case the cause of the litigant should fail if the enquiry reveals that in the ordinary course he is not in a position to raise the requisite amount to pay the court fee in spite of making an earnest effort to raise funds by disposing of or creating charge over the property he owns. The mere fact that the petitioner (plaintiff) in a petition for leave to sue in forma pauperis, is stated to have some interest in immovable property by itself, should not be taken to mean that he has the means to pay the prescribed court fee. The real test is whether the petitioner is in a position in the ordinary course to convert his possessions, if any, into liquid cash without under hardship and delay for the purpose of paying the requisite court fee. If the court is satisfied that the petitioner is not in such a position, the petition for leave to sue in forma pauperis has to be allowed. This should be the broad outline which should guide the court while taking decision on an application for leave to sue in forma pauperis.”

                  [ Emphasis added ]

13. In A.Prabhakaran Nair (supra), it was held as follows by another learned Single Judge:-

                  “3. The benefit is conferred on persons without “sufficient means” and not without any means at all. Pauperism is not a prerequisite for the leave. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property alone is what the Court has to look into. Possession of ‘sufficient means’ refers to possession of sufficient realisable property which will enable the plaintiff to pay the Court-fee. Possession of hard cash sufficient enough to pay the Court-fee is not a pre-requisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay Court-fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. What is intended and provided is that justice shall not be denied to a person for the reason that he is not having sufficient means to pay Court-fee.

                  4. Even though sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. The interpretation must be to achieve the object behind the provision enabling the benefit to reach those for whom it is intended. What is intended is not capacity to raise funds by means whatsoever by begging, borrowing or stealing or by any other hook or crook, but by normal, and available lawful means. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. This itself is the object of exclusion of property exempt from attachment in execution of a decree and the subject matter of the suit from ‘sufficient means’. Assessment of ‘sufficient means’ should not be at the expense of right to live with dignity guaranteed under the constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that has yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court-fee cannot be taken into account in calculating sufficient means. The approach must be practical and in a way to promote the cause of justice and at the same time cautious enough to plug mala fide avoidance of immediate payment of court-fee. The words used are “possessed of sufficient means” which means that what was not possessed at the time of suit cannot be taken into account.”

                  [ Emphasis added ]

14. A Division Bench of this Court in Xavier (supra), held as under:-

                  “2. The appellant owns 2.72 cents of land on which stands his residential building. On the reasoning that this is worth Rs. 20,000/-, the court below concluded that, ‘the application cannot be allowed’. The court said no more; and considered nothing else. What is germane is whether the appellant is possessed of ‘sufficient means’, to pay court fee, and not whether he is possessed of any means. An indigent person need not be one bereft of all material possessions of value. Order XXXIII understands an indigent person as:

                  “Explanation I—A person is an indigent person,— (a) if he is not possessed of sufficient means (other than property exempt from attachment. In execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

                  (b) where no such fee is prescribed, if he is not entitled to property worth ‘one thousand rupees other than the property exempt from attachment in execution of a decree and the subject-matter of the suit”.

                  The Code confers the benefit on persons without ‘sufficient means’. It refers not, to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain if he is capable of raising the court fee in normal circumstances. A straight jacketed interpretation cannot be made on the language of the rule. The Code uses the expression ‘sufficient means’ which is, means sufficient to pay court fee, after meeting the basic requirements of life. An interpretative process consistent with the Constitutional Directives and philosophy must prevail. Article 39A of the Constitution of India envisages equal justice and free legal aid and the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and ensure “that opportunities are not denied to any citizen by reason of economic or other disabilities”. Total destitution is no pre-requisite to seek justice. If he has not sufficient means to pay court fee, justice shall not be denied to him. Innovate we do not; we interpret the rules to achieve the objects behind it and to reach its benefit to those it is intended for.”

15. In the said case, this Court declared the appellant therein, who had no assets other than his residential house, to be an indigent person. This Court referred to the judgments in Janaky kutty v. Varghese [1969 KLT 953] and Sumathy Kutty v. Narayani [AIR 1973 Ker. 19] in support of the conclusions.

16. Another Division Bench of this Court in Babu v. Banumathy Menon and another [2005 SCC OnLine Ker 5] observed that a really deserving litigant should not be shut the doors of justice merely because he has no court fee to be paid.

17. In Paulose @ Paulo (supra), another Division Bench of this Court explained the law in this regard as under:-

                  “3. There is no dispute that the court fee payable is Rs. 4,11,020/- (Rupees four lakhs eleven thousand and twenty only). By virtue of clause (a) to Explanation I to Order XXXIII Rule 1 CPC, the subject matter of the suit and property exempt from attachment in execution of a decree, are to be excluded while considering the question as to whether the applicant is possessed of sufficient means. If so, the property which can be considered to have retained by him is only 1 = cents and not 6 cents as was wrongly assumed by the court below. The question then is whether the appellant who is in possession of 1 = cents of land could be said to be possessed of sufficient means to pay the court fees of Rs.4,11,020/-. The mere fact that the applicant in a petition for leave to sue in forma pauperis is stated to have some interest in immovable property by itself, should not be taken to mean that he has the means to pay the prescribed court fee. The real test is whether the petitioner is in a position, in the ordinary course, to convert his possession into liquid cash without undue hardship and delay and pay the requisite court fee (see Kamalamma v. Karthiayani (1972 KLT 783). The law does not expect him to make a distress sale of his only property and pay the court fee and thereafter live in penury or abject poverty. Courts have to construe the provisions with a pragmatic insight and without sacrificing the social justice element and the constitutional ethos behind the sublime process of administration of justice.

                  4. An indigent person need not be one bereft of all material possessions of value. The Code confers the benefit on persons without ‘sufficient means’. It refers not, to a person without any means. Whether a person is without sufficient means, would depend on the facts of the case and the court has to ascertain whether he is capable of raising the court fee in normal circumstances. The Code uses the expression ‘sufficient means’, i.e. “means” sufficient to pay court fee after meeting the basic requirements of life. Total destitution is no prerequisite to seek justice. If he does not have sufficient means to pay court fee, justice shall not be denied to him. A person who has no possession, save his residential house, and who is over 70 years of age with no prospect of earning capacity, is a person without means to pay the requisite court fee. (Vide Xavier v. Kuriakose (1987 (1) KLT 176).

                  5. The benefit is conferred on persons without ‘sufficient means’ and not without any means at all. Pauperism is not a pre-requisite for leave to sue as an indigent person. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property which the court has to look into. Possession of ‘sufficient means’ refers to possession of sufficient realisable property which will enable the plaintiff to pay the court fee. Possession of hard cash sufficient enough to pay the court fee is not a pre-requisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay the court fee. Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. Eventhough sufficient means is capacity to raise sufficient funds there must be a liberal approach in construing what that capacity is. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. Assessment of ‘sufficient means’ should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence. A debt that is yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court fee cannot be taken into account in calculating sufficient means. The words used are “possessed of sufficient means” which means that what was not possessed at the time of suit cannot be taken into account. (Vide Prabhakaran Nair v. Neelakantan Pillai (1987 (2) KLT 376).”

                  [ Emphasis added ]

18. Learned counsel for the respondent submitted that in view of the provisions of Rules 6 and 7 of Order XXXIII the parties to the suit have a right to be heard with respect to any request for permission to prosecute the suit as an indigent person. He argued that the suit was filed on 8.3.2023 and issues were framed on 11.7.2024. In the plaint there is no averment regarding the fiscal status of the appellant. I.A.No.9/2024 was filed only on 17.7.2024. He contended that the application was filed without any bonafides. He pointed out the averments in paragraph 13 of the plaint and submitted that the appellant admits that he received enormous amounts towards his professional fee. Having admitted receipt of such amounts, it is not open to the appellant to contend that he has no sufficient means to raise the funds for payment of court fee unless he explains how the huge amounts received from the respondent became unavailable.

19. The learned counsel for the respondent further contended that in view of various provisions of Order XXXIII, no separate application to permit a plaintiff to avoid payment of balance court fee and to prosecute the suit as an indigent person can be entertained. He contended that such an application can be filed only in the form of a plaint and that at the stage of filing itself, the party should have a case that he lacks sufficient means to pay court fee. He argued that the decisions of this Court adopting a contrary view may not be followed. The learned counsel submitted that the view adopted buy this Court in various decisions relied on by the learned counsel for the appellant is per incuriam in view of the judgment of the Hon'ble Supreme Court in Solomon Selvaraj and Others v. Indirani Bhagawan Singh and Others [(2023) 1 SCC 349]. The Hon'ble Supreme Court noted various Rules under Order XXXIII and explained the procedure to be followed. He made specific reference to the following paragraph:-

                  “13. Order 33 Rule 7CPC provides for procedure at hearing. Order 33 Rule 8CPC provides for procedure if application is allowed. It appears that if the application is granted, it shall be numbered and registered, and it shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as the suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court fee or fees payable for service of process in respect of any petition, appointment of a pleader or other proceeding connected with the suit. Meaning thereby if the application is granted thereafter the suit shall be numbered and registered. Till then the plaint/suit shall be at pre-numbered and pre-registered stage.”

20. The learned counsel also referred to Kamu alias Kamala Ammal v. M.Manikandan and Another [(1998) 8 SCC 522] wherein the Hon'ble Supreme Court held as under:-

                  “4. It is, therefore, obvious that the application for permission to sue as an indigent person has to be rejected and could not be allowed if the allegations in the plaint do not show a cause of action. That being so, there was no occasion to grant the permission without deciding this objection and, therefore, the question of deferring consideration of the objection based on absence of cause of action could not be deferred for consideration after grant of the permission. This alone is sufficient to set aside that order.”

21. The learned counsel argued that, in view of the law as clarified by the Hon'ble Supreme Court in the judgments relied on by him, the view taken by this Court that an application to prosecute a suit as an indigent person can be filed at a subsequent stage is not good law.

22. The learned counsel also placed reliance on the judgment in Mathai M Paikeday v. C.K.Antony [(2011) 13 SCC 174] and referred to the following paragraph of the judgment:-

                  “20. Admittedly the respondent is a retired Deputy Conservator of Forests, Government of Kerala and drawing a pension of Rs.10,500. It was also stated by him in his deposition before the High Court on 3-1-2008 that his son is employed abroad and does not regularly send him money and in response to a suggestion, whether his bank account discloses the amount of money sent by his son, he does not deny the suggestion. However, it is noteworthy to mention that the respondent has never denied that his son sends him money. Furthermore, the respondent had failed to establish that the amount of money received from his son is not substantial or insufficient to pay the court fee by not producing passbook of his bank account. In our considered opinion, non-production of bank account transaction details, amounts to suppression of the facts and in view of this, an adverse inference can be drawn against the respondent that he is receiving a substantial or sufficient amount of money from his son. Therefore, the amount of money received by the respondent from his son and by way of pension amounts to a sufficient means to pay the court fee which disentitles him to be an indigent person under Order 33 Rule 1 and Order 44 Rule 1 of the Code of Civil Procedure.”

23. On a careful reading of the judgments of the Hon'ble Supreme Court cited by the learned counsel for the respondent, I am of the view that the same are not straightly or even indirectly dealing with the legal issues arising for consideration in this case. Argument of the learned counsel is that the consistent view of this Court that an application for permission to prosecute the suit as an indigent person can be filed after institution of the suit is inconsistent with the law laid down by the Hon'ble Supreme Court. However, since the said issue was not under consideration of the Hon'ble Supreme Court in the decisions cited and hence, I am unable to agree with the learned counsel for the respondent in this regard.

24. Apart from the decisions cited by the learned counsel for the appellant, in various other judgments also this Court has consistently held that an application under Order XXXIII Rule 1 can be entertained when the plaintiff has no sufficient means to raise funds to pay balance court fee. In Andrews v. Hassan and another [2006 SCC OnLine Ker 222] the said issue was specifically considered by this Court. Relevant paragraphs of the judgment are extracted hereunder:-

                  “6. The question to be decided is whether a person who has paid one tenth of the court-fee on the presentation of the plaint could file an application under Order XXXIII, Rule 1, CPC at the time when he is liable to pay the balance court-fee under Section 4-A of the Court Fees Act. Another question to be answered is whether in such a case the indigency of the plaintiff is to be determined with reference to the date of presentation of the plaint or the date when the application under Order 33 Rule 1 is made. Yet another question to be decided is whether the plaintiff having disposed of his property for consideration after the institution of the suit could claim to be an indigent person thereafter.

                  7. Section 4-A of the Kerala Court Fees and Suits Valuation Act was inserted by the Amendment Act 6 of 1991. Section 4-A provides that the amount of fee to be paid on plaint at the time of institution of suit shall be one-tenth of the amount of fee chargeable under the Act and the balance amount shall be paid within such period, not later than fifteen days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding fifteen days as may be specified by the Court. Section 4-A of the Court Fees Act only postpones the payment of court-fee. Court-fee is payable on the valuation of the suit as on the date of the suit, at such rate of fee liable to be paid as on the date of suit. In the case of an indigent person, the suit shall be deemed to be instituted on the date when the application under Order XXXIII, Rule 1 is made. Section 3(2)(a)(ii) of the Limitation Act provides that for the purpose of the Limitation Act, a suit is instituted, in the case of a pauper, when his application for leave to sue as a pauper is made. Rule 8 of Order XXXIII of the Code of Civil Procedure states that where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee. Where an application to file the suit as an indigent person is rejected under Rule 5 or an application is refused under Rule 7, the Court may grant time to pay the court-fee. Rule 15-A of Order XXXIII states that upon such payment of court-fee, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person, was presented.

                  8. The aforementioned provisions of law would, on a literal construction, indicate that the relevant date for determining the indigency of the plaintiff is the date of presentation of the application for leave to sue as an indigent person. But, there may occasion cases where a plaintiff may pay one tenth of the court-fee at the time of presentation of the plaint and may, quite honestly, hope to pay the balance court-fee within time, nevertheless, later he may become a pauper, for reasons beyond his control. It may happen that his properties are lost by act of God; or his properties and assets are sold or realised at the intervention of the Court for realisation of his debts; or he was compelled by pressing needs to spend the money kept aside by him for payment of balance court-fee and there is no realizable asset presently. These examples are not exhaustive. In such cases, law would and should come to his rescue and grant leave to continue the suit as an indigent person in so far the balance court-fee is concerned. To our mind, in such cases, the fiction by which the date of institution of the suit is related back to the date of application for leave to sue as an indigent person, would not deprive the plaintiff to avail the benefit of Order XXXIII, CPC .”

                  [ Emphasis added ]

25. In Alex V.Varghese v. Kerala State Electricity Board & others [2010 SCC OnLine Ker 4926] a Division Bench of this Court held as under:-

                  “4. 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 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.

                  5. 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 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.

                  6. In the case in hand the plaintiff had paid 1/10th of the court fee while instituting the suit. Following written statement, 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 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.”

                  [ Emphasis added ]

26. Recently in Jose Konikkara v. Jayasree Balachandra Kurup and others [2026 SCC OnLine Ker 4899] a Division Bench of this Court held that it is settled law that permission to prosecute the suit as an indigent can be sought notwithstanding the fact that the suit was instituted by payment of one-tenth of the court fee. The inability to pay balance court fee and the indigency if proved, the plaintiff can be permitted to prosecute the suit as an indigent.

27. It is also profitable to refer to the judgment of a learned Single Judge in Jayaraj.K.K. & another v. K.Kalyani & another [2008 SCC OnLine Ker 373]. The following are the relevant observations:-

                  “5. At the time of institution of the suit, by virtue of S. 4A of the Kerala Court - fees and Suits Valuation Act, 1959, the plaintiff need pay only one tenth of the court-fee. The balance court - fee need be paid within such period, not later than fifteen days from the date of framing of issues. The plaintiff may honestly think that if there is contest in the suit, she would be able to pay the balance court - fee within fifteen days after framing the issues. Such a belief of the plaintiff would not bind her for ever, precluding her from getting, the benefit of the benevolent provisions of O. 33 of the Code of Civil Procedure. If she is bereft of sufficient means to pay the balance court - fee, the state of affairs as on the date of plaint may be relevant only for considering whether the plaintiff has disposed of her assets, properties or other resources and claims to be an indigent person at a later point of time. In some cases, the plaintiff who was having sufficient resources may become a pauper subsequently. That does not preclude the plaintiff from filing an application for permission to sue as an indigent person at a later point of time, that is, at the time of payment of the balance court - fee. The question to be considered is whether the plaintiff has the means to pay the court - fee. It is also relevant to decide whether she has disposed of any of her properties within two months before the institution of the suit or whether there is any contumacious conduct on the part of the plaintiff disentitling her to the benefit of the provisions of O. 33 of the Code of Civil Procedure. In the case of loss of assets, properties or resources after filing the suit under circumstances in which the plaintiff cannot be blamed at all or in cases where it cannot be said that there was any contumacious conduct on the part of the plaintiff, the Court would have jurisdiction to grant an application under O. 33 R. 1, even at the stage of payment of balance court - fee. The honest belief of the plaintiff that she would be able to pay court - fee at a later point of time, would not debar her from claiming the benefit of O. 33 if subsequently it is found that she is unable to pay the balance court;-fee. A set of circumstances leading to the inference that the plaintiff is not an indigent person cannot be presumed to exist as on the date of institution of the suit. The Court cannot, on the basis of such presumption, hold that the plaintiff continues to be a person who is not an indigent at the time when the balance court - fee is to be paid. The Court cannot presume such set of facts and insist on proof of change of circumstances. Even if a person is really indigent at the time of institution of the suit, he may honestly hope to get some funds by some means so as to pay the balance court - fee. The Court cannot presume that at the time of institution of the suit, the plaintiff was not an indigent person and proceed with the case on that presumption. ”

                  [ Emphasis added ]

28. Another contention of the learned counsel for the respondent is that an application under Order XXXIII Rule 1 can be filed only in the form of a plaint and hence the application filed in the instant case in the form of an IA is improper. The learned counsel raised the said contention as a corollary of his submission that the provisions of Order XXXIII do not contemplate filing of an application for permission to sue as an indigent person subsequent to the institution of the suit. Answer to the said contention of the learned counsel for the respondent is available in the judgment of a Division Bench of this Court in Shankarankutty Nair v. Uma Devi Amma [2015 SCC OnLine Ker 16726]. The Division Bench held as under:-

                  “4. When 1/10th court fee due at the stage of institution of the suit was paid and the plaintiff thereafter faced a situation where he claimed exemption from payment of balance court fee, it is sufficient that the plaintiff files an interlocutory application. Though relevant rules require a verified petition to be filed; even in cases where a verified petition is a prescription in terms of the rules, if a litigant files an affidavit supporting such an interlocutory application; that would be in a pending suit and is hence maintainable, as being in substantial compliance of the rules, if the ingredients necessary for claiming such relief are stated in the affidavit filed in support of that petition. It would be too hyper technical to reject such a petition on a ground referable to the form in which such an application is filed. Substantial justice has to find its way forward, though without infracting procedural laws. This is more so because procedural webs are created to insulate the system from injustice. On the totality of the facts and circumstances of the case in hand, we see that this is a case where the court below ought to have proceeded to consider the merit of the contention of the appellant that he did not have the means to pay the balance court fee of Rs.34,650/-due on the plaint.”

                  [ Emphasis added ]

29. Another Division Bench in Kuriakose.P.K. v. Asgar Shakoor Patel and others [2018 SCC OnLine Ker 23391] expressed the same view. Therefore, the said contention of the learned counsel for the respondent is also rejected. When a plaintiff finds himself unable to raise adequate funds to pay balance court fee due to inadequacy of means, it is open to him to file an I.A. under Order XXXIII Rule 1 for permission to prosecute the suit further as an indigent person.

30. The learned counsel for the respondent further submitted that since the appellant admits that he is now practicing and also that he pays monthly installments towards the vehicle loan, rent for his office space and salary to staff, he cannot be considered as a person incapable of raising funds to pay balance court fee. The learned counsel also submitted that the appellant is not justified in contending that the property owned by him cannot be utilized for raising the funds. He contended that it is open to the appellant to offer the said property as security and obtain loan to pay the balance court fee. The learned counsel submitted that the learned Subordinate Judge has approached the issue in a proper perspective and has rightly rejected the application of the appellant. He therefore submitted that the appeal is liable to be dismissed with costs.

31. I have perused the impugned order and also the pleadings and documents produced in the appeal.

32. On a careful appraisal of the impugned order, I find that the learned Sub Judge has rejected the application mentioning the following reasons:-

                  1) The appellant is an income tax payee and therefore he cannot be considered as a person not having sufficient means.

                  2) In the plaint there is no averment regarding the financial status of the plaintiff.

                  3) The appellant ought to have prayed for permission to prosecute the suit as an indigent person at the stage of filing of the suit itself.

                  4) The appellant owns 2.966 cents of property in Edappally Village and the same would fetch more value than that is mentioned in the application and consequently the appellant cannot be considered as not having sufficient means.

33. In my view the appreciation of relevant aspects by the learned Sub Judge was not in accordance with the law laid down by this Court in various judgments referred above. Mere fact that a person is an income tax payee cannot be considered as a reason to conclude that he has sufficient means to raise funds to pay the required court fee. Focus should be on the adequacy of means to raise sufficient funds. Similarly, the learned Judge has proceeded under the erroneous impression that an application filed for permission to prosecute the suit as an indigent person at a later stage cannot be entertained. While accusing the appellant for not stating anything in the plaint regarding his financial status, the learned Sub Judge overlooked the case of the appellant that he met with an accident after filing the suit and that led to prolonged bedrest resulting in drastic reduction of professional income. The learned Judge failed to note that the appellant has no case that he had no sufficient means at the time of filing of the suit. So also, the learned Sub Judge erred in proceeding to observe that the property of the appellant in Edappally Village would fetch enough amounts and therefore he cannot be considered as not having sufficient means. The perception of the learned Judge in this regard is inconsistent with the law as explained in the judgments of this Court relied on by the appellant.

34. The appellant has explained in his evidence as to why the said property cannot be sold. The said explanation was overlooked without any discussions. Reasonings in the impugned order are in my view entirely flawed as they are contrary to the principles enunciated by this Court.

35. In view of the foregoing discussion, I hold that the impugned order cannot be sustained. It is accordingly set aside. The learned Sub Judge shall reconsider the matter in the light of the law laid down by this Court in various relevant judgments. The matter is thus remitted for fresh consideration. I make it clear that this Court has not considered the rival contentions of both sides regarding the merits of the plea of the appellant regarding indigency. Same shall be analysed by the learned Sub Judge untrammeled by any observations in this judgment.

Appeal is disposed of as above. No costs.