S.Moorthy vs M/S.S.K.Samy & Sons
2021 Latest Caselaw 1634 Mad

Citation : 2021 Latest Caselaw 1634 Mad
Judgement Date : 25 January, 2021

Madras High Court

S.Moorthy vs M/S.S.K.Samy & Sons on 25 January, 2021

                                                                       C.M.A.No.102 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 25.01.2021

                                                       CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                C.M.A.No.102 of 2021

                     S.Moorthy                                         .. Petitioner
                                                             vs.

                     1.M/s.S.K.Samy & Sons,
                       A Firm running Warehouse,
                       SF.No.414 to 416,
                       Perundurai Road,
                       Erode-11.

                     2.S.K.Parthasarathy

                     3.S.K.Krishnasamy (Died)

                     4.S.K.Duraisamy

                     5.C.Thangavelu

                     6.State rep.by
                       District Collector,
                       Erode District, Erode Collectorate,
                       Erode.

                     7.K.Jayalakshmi

                     8.K.Sathish @ Palanisamy                             .. Respondents


                     1/6


https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.102 of 2021


                     PRAYER : Civil Miscellaneous Appeal filed under Section 43 Rule 1 of
                     C.P.C, to set aside the Fair and final order passed in P.O.P.No.28 of 2004,
                     dated 13.03.2013 by the learned 1st Additional District Judge of Erode.
                                     For Petitioner             : Mr.V.S.Kesavan

                                                       ORDER

The Civil Miscellaneous Appeal is filed to set aside the Fair and final

order passed in P.O.P.No.28 of 2004, dated 13.03.2013 by the learned 1 st

Additional District Judge of Erode.

2. The suit was instituted by the petitioner. Along with the suit,

P.O.P.No.28 of 2004 was filed by the appellant seeking permission to

institute a suit as an indigent person under Order 33 Rule 1 of C.P.C. The

Trial Court adjudicated the issues with reference to the documents and

evidence produced by the respective parties. As per Ex.X1 and Ex.X2, the

Trial Court made a finding that the petitioner is having means to pay the

Court fee. This apart, the petitioner has not disclosed the fact regarding the

suit already filed by him against one S.K.Samy & Sons, a Firm running

ware house represented by its partner Duraisamy in O.S.No.188 of 2001.

The evidence as well as the documents examined by the trial Court reveals

https://www.mhc.tn.gov.in/judis/ C.M.A.No.102 of 2021

that the petitioner is having sufficient means to pay the Court fee. The

findings of the trial Court in this regard reads as under:

22. In this case, it is the duty of the petitioner to approach the court with clean hands. The petitioner was examined on 20.04.2005. But the petitioner failed to disclose the suit filed by him as against S.K.Samy & Sons, a Firm running warehouse represented by its partner Duraisamy in O.S.No.188 of 2001 before the first Additional Sub-ordinate Judge, Erode and in the above suit, a sum of Rs.25,83,678/- was recovered from the defendant and out of that Rs.17,00,000/- was paid to the Karur Vysya Bank and discharge the mortgage loan and now the petition mentioned property in the schedule is free from encumbrances. Now, the property is values more than 20 lakhs and further, it is found, the petitioner is capable of raise funds through various source including from his own kith and kin. Further, more the case laws discussed in para 19 and 21 are relevant to the fact of this case. Hence, I found that the petitioner is having possessed sufficient realizable immovable property and also the petitioner is having capable and having funds. Therefore, I found that the petitioner is having sufficient means to pay the Court fee prescribed by law. Thereby, I dismissed the petition.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.102 of 2021

3. In view of the fact that the petitioner has not established that he is an

indigent person and the Court found during trial that the petitioner is

capable of paying the Court fee and he is having means to pay, there is no

reason to interfere with the order passed by the trial Court and accordingly,

the judgment and decree dated 13.03.2013 passed in P.O.P.No.28 of 2004

stands confirmed and the Civil Miscellaneous Appeal stands dismissed. No

costs.

4. The petitioner is permitted to pay the Court fee within a period of four

weeks from the date of receipt of a copy of this order.

25.01.2021

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