Karnataka High Court
Srinath S/O Chandrashekhar Tonashyal vs Yamanurappa S/O Nagappa Yalawar on 5 November, 2024
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NC: 2024:KHC-D:16154
MFA No. 100199 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.100199 OF 2020 (CPC)
BETWEEN:
SRINATH S/O. CHANDRASHEKHAR TONASHYAL,
AGE: 35 YEARS, OCC: NIL, R/O: SAPTAPUR,
JAYANAGAR CROSS, DHARWAD.
...APPELLANT
(BY SRI GANESH RAIBAGI, ADVOCATE)
AND:
1. YAMANURAPPA S/O. NAGAPPA YALAWAR,
AGE: 62 YEARS, OCC: ACTIVE PARTNER OF
RESPONDENT NO.2, R/O: KUMARESHWAR NAGAR,
MAIN ROAD, OPP: HOUSE OF DR. B.S. KONNUR,
BEHIND MAHADEV DEVELOPERS,
NEAR NAGAMMA TEMPLE, DHARWAD - 580 008.
2. OM SAI INDUSTRIES PLOT NO.523, BELUR INDUSTRIAL
Digitally signed AREA, DHARWAD, BY ITS ACTIVE PARTNER
by SAROJA
HANGARAKI YAMANURAPPA S/O. NAGAPPA YALWAR,
Location: High
Court of R/O: KUMARESHWAR NAGAR, MAIN ROAD,
Karnataka
OPP: HOUSE OF DR.B.S. KONNUR,
BEHIND MAHADEV DEVELOPERS,
NEAR NAGAMMA TEMPLE, DHARWAD - 580 008.
3. THE STATE OF KARNATAKA, REPRESENTED BY D.C.,
DHARWAD.
...RESPONDENTS
THIS MFA FILED U/O.43 RULE 1(NA) OF THE CODE OF CIVIL
PROCEDURE, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
ORDER DATED 30.03.2019 PASSED IN MISC.NO.06/2018 BY THE
COURT OF PRL. SENIOR CIVIL JUDGE AND CJM, DHARWAD AND
ETC.,
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NC: 2024:KHC-D:16154
MFA No. 100199 of 2020
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The above appeal is filed under XLIII Rule 1(na) of
the Code of Civil Procedure1 challenging the order dated
30.03.2019 passed in MIsc.No.6/2018 by the Principal
Senior Civil Judge and CJM, Dharwad2.
2. The relevant facts necessary for consideration
of the present appeal are that the appellant filed a petition
under Order XXXIII Rule 1 of the CPC to exempt him from
paying court fee in the intended suit to be filed against the
respondents. The Trial Court by order dated 30.03.2019,
dismissed the said petition. Being aggrieved, the present
appeal is filed.
Hereinafter referred to as 'CPC'
Hereinafter referred to as 'Trial Court'
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3. It is forthcoming that the Trial Court while
considering the petition filed by the petitioner, has
recorded the following findings:
"12. These documents per-se are not directly
connected to this petition on hand. Another important aspect
of the matter is the present petition has not fulfilled the
conditions to be complied by the Petitioner in a petition of the
present nature. So far as order 33 Rules 2 to 4 of the CPC
have not been complied with. Likewise when the petition
averments and also the evidence tendered by P.W.1 is gone
through they do not show the cause of action. If according to
P.W.1 the Respondent No.1 has committed fraud and cheated
him. In an intended suit filed by him he should come out with
specific ascertained amount of money to be recovered from
the Respondent No.1. As I have stated earlier the plaint
prayers are vague and besides that it is without any valuation
slip because this petition is unable to value the suit and to pay
the proper Court fee.
13. So far as requirement of this petition is that
there is a nil material to show that where he is staying, who is
looking after his sustenance, what is his monthly expenses
and which of the movable and immovable properties he
possesses. Even though the Respondent No.3 has been placed
exparte but nothing prevented him to place documents to
show that what does he not possess. Simply it is not enough
that if he claims that he is penniless it is no ground to hold
him pauper only for the purpose of paying the Court fee.
Likewise in this direction the P.W.1 was more interested in
placing the materials of Respondents No.1 and 2 rather than
showing before the Court that what means he possesses, and
there is no material to form an opinion that whether the P.W.I
has a family, if he has a family whether his wife is a working
lady or if he has children whether they are major in age,
whether they are working or not. Under such circumstances,
without understanding the consequences and legal
implications of order 33 Rule 1 of the CPC present petition has
been filed. Likewise the original suit which the Petitioner
wants to file, its prayers are vague and there is no valuation
slip. Under such circumstances, this petition cannot be a
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platform for the P.W.1 file another suit. Under such
circumstances virtually there is no cause of action to file this
petition and the intended suit."
(emphasis supplied)
4. Although it is sought to be contended in the
present appeal that having regard to the fact that the
respondents have not filed any objections, the petition
ought to have been allowed, it is forthcoming that the
appellant has not produced any material before the Trial
Court to demonstrate that he had no source of income and
he was an indigent person. The appellant having failed to
demonstrate that he has satisfied the conditions as
required under Order XXXIII Rule 1 of the CPC and the
Trial Court having rightly appreciated the material on
record and recorded a finding that no documents have
been produced by the petitioner, the appellant has failed
to demonstrate that the findings recorded by the Trial
Court are in any manner erroneous and contrary to the
material on record and that the order passed by the Trial
NC: 2024:KHC-D:16154
Court is liable to be interfered by this Court in the present
appeal.
5. In view of the aforementioned, the above
appeal is dismissed as being devoid of merit.
SD/-
(C.M. POONACHA)
JUDGE
SH
CT-ASC
