1. Petitioner in Original Petition (Indigent) No.1/2023 on the file of the Subordinate Judge’s Court, Sulthan Bathery, has filed this appeal aggrieved by the rejection of the application filed under Order XXXIII Rule 1 of the Code of Civil Procedure.

2. According to the appellant, respondents/defendants offered to sell a property of the 2nd respondent to the appellant and a sale agreement was executed on 9.2.2011. The total consideration fixed was Rs.1,50,67,500/-. Appellant had given Rs.10,00,000/- as advance consideration. On 24.2.2011 and 7.5.2011, Rs.20,00,000/- each were paid to the 1st respondent, the power of attorney holder of the 2nd respondent. These payments were endorsed on the reverse side of the agreement. The appellant entered into another agreement with two others on the strength of the agreement executed between him and the 1st respondent for sale of the same property for a higher consideration.

3. According to the appellant, on 9.2.2011, he was detained and the agreement was forcefully taken from him by the respondents and the persons who entered into the subsequent agreement with him. He was forced to sign several papers and also on the reverse side of the agreement. Though he approached police, no case was registered. Appellant claims that he is entitled to get back Rs.50,00,000/- paid towards sale consideration. He is liable to pay Rs.8,42,200/- as court fee and Rs.1,23,800/- as Legal Benefit Fund for lodging the suit.

4. Appellant states that now he is unemployed. He has only 20 cents of land and no income is generated from the said property. He had a Toyota Innova vehicle, purchased by borrowing money. The car was of 2010 model. It is submitted by the learned counsel for the appellant that the said vehicle was later sold and the amounts were utilized for clearing the debt and for treatment of the wife of the appellant. It was stated in the application filed before the trial court and in the proof affidavit that the appellant has no means to pay the court fee and the Legal Benefit Fund.

5. In the proof affidavit, he further stated that he is now residing with his brother and as he is constantly taking care of his father whose right leg was amputated, he is not in a position to engage in any income-generating activity. His wife is also unemployed.

6. The appellant was cross-examined by learned counsel for the respondents. However, nothing was brought out to discredit the version regarding indigency. On the side of the appellant, Exts.A1 to A7 were marked.

7. The learned Sub Judge, after hearing both sides, dismissed the petition. The learned Judge noted that the appellant is a person of 45 years of age without any health issues. He is capable of doing any work. The learned Judge found that he has earning capacity. The learned Judge also noted that though the car was sold by him during the pendency of the proceedings, he did not care to pay the initial court fee out of the amount received. It was also noted that no document showing treatment of the wife and loan claimed to have been obtained for buying the vehicle were produced. In conclusion, the learned Judge found against the appellant and rejected the application by the impugned order.

8. Heard the learned counsel for the appellant and perused the pleadings and records.

9. In Paulose @ Paulo v. Elias K.Varghese and another [2012 (1) ILR (Ker) 972], a Division Bench of this Court held referring to two earlier judgments as under:-

                  “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. Even though 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 utilize 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).”

10. While considering an application filed under Order XXXIII Rule 1 of the CPC, it must be kept in mind that the said provision has been incorporated in the CPC with a purpose. Dearth of means to pay court fee shall not dis-entitle a genuinely impecunious person from approaching the civil court and availing remedies. The paramount consideration is as to whether the person has the capacity to raise funds to pay the court fee.

11. The learned Sub Judge noted that the petitioner is only 45 years of age and can do any work. On the other hand, he points out that his aged father is taken care of by him whose right leg was amputated. He hence submits that he is not in a position to engage in any income-generating activity. The petitioner also explains that the car was purchased by availing loan and amount obtained by selling the car was utilized to discharge the debt. Though he claims to own 20 cents of land it is to be noted that in the report of the Collector it was stated that he owns only a lesser extent. According to the petitioner, no income is generated from the said property.

12. No material on record including the report of Collector shows that the petitioner has sufficient means and capacity to raise the amount required to pay the court fee and Legal Benefit Fund in the instant case which would quantity to little less than Rs.10 lakhs. Nothing has been brought out in the cross-examination of the petitioner to indicate that his case is incorrect. I therefore hold that the impugned order is not legally sustainable. The same is liable to be set aside.

                  The appeal is therefore allowed. The impugned order is set aside. Original Petition (Indigent) No.1/2023 is allowed. The petitioner shall be permitted to prosecute the suit as an indigent person.