Madras High Court
Neelavathy vs Murugavalli @ Sumathi on 5 January, 2021
C.M.A.No.984 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.984 of 2016
C.M.P.No.7510 of 2016
1.Neelavathy
2.Pooncholai ..Appellants
Vs.
1.Murugavalli @ Sumathi
2.Minor Arun
S/o.Deivasigamani
rep.by guardian mother 1st respondent ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 41 Rule 1
(na) of CPC, to set aside the judgment and decree dated
19.11.2015 passed in P.O.P.No.18 of 2012 on the file of the
Additional Sub-Court, Villupuram.
For Appellant : M/s.R.Meenal
For Respondents : Mr.M.Gnanamoorthy
for Mr.N.Suresh
JUDGMENT
The Judgment and Decree in P.O.P.No.18 of 2012 dated
19.11.2015 is under challenge in the present Civil Miscellaneous
Appeal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.984 of 2016
2. The appellants are the plaintiffs, who have instituted a suit
for partition in P.O.P.No.18/2012, which is filed under Order 33
Rule 1 of C.P.C, seeking permission of the Court to institute the suit
as indigent persons. The trial Court adjudicated the issues and
arrived at a conclusion that the plaintiffs cannot be construed as
indigent persons and accordingly, rejected the petition. Thus, the
present Civil Miscellaneous Appeal is filed.
3. The learned counsel appearing for the appellants
sterroneously contended that the procedure contemplated under
Order 33 Rule (6) of C.P.C., was not followed by the trial Court
before dismissing the petition. According to the learned counsel,
the Code of Civil Procedure mandates that the Court shall fix a date
for receiving evidence before rejecting an application enabling the
applicant to produce the proof of his indigency. In this case, no
such notice was issued and no opportunity of hearing was given to
the petitioner/appellants before the trial Court before rejecting his
application. In the absence of any such enquiry being conducted,
the trial Court ought not to have arrived at a conclusion that the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.984 of 2016
appellants are not indigent persons.
4. The learned counsel for the appellants mainly contended
that the appellants are possessing Nanja Land to an extent of 0.86
acres. Since the land is a dry land, the appellants are not deriving
any income from and out of the said land. Thus, they have no
sufficient funds or means to pay the Court fee, which is enough to
consider the petition and permit the appellants to institute a suit as
indigent persons.
5. The learned counsel for the respondents objected the
same by stating that the petitioners themselves admitted before
the trial Court that they are possessing a land to the extent of 0.86
acres. The first appellant is the mother of the second appellant and
the second appellant has got married, and she is living with her
husband and she is also having a separate income. Under these
circumstances, the appellants cannot be held as indigent persons,
so as to get benefit under Order 33 Rule (1) of C.P.C.
6. This Court is of the considered opinion that the Court can
https://www.mhc.tn.gov.in/judis/
C.M.A.No.984 of 2016
reject the application under Order 33 Rule(5) of C.P.C, on the
ground that the applicant is not an indigent person. Whether the
applicant is an indigent person or not, is subject to the satisfaction
of the Court with reference to the documents and evidence
produced by the parties concerned. As far as the appeal on hand is
concerned, the appellants themselves admitted that they are
possessing a land to the extent of 0.86 acres in Survey No.108.3.
Further, it is stated that it is a dry land and the appellants are not
deriving any income from and out of the said land. The trial Court
in this regard made a finding that while admitting the fact that the
petitioners are possessing a land, they have failed to produce any
proof to establish that they have not got any income from and out
of the said land. In the absence of any such evidence, the benefit
of Order 33 Rule 1 of CPC cannot be extended in favour of the
appellants.
7. This Court is of the considered opinion that Order 33 Rule
(1) of C.P.C, unambiguously stipulates that the suit may be
instituted by an indigent person, if he is not possessed of sufficient
https://www.mhc.tn.gov.in/judis/
C.M.A.No.984 of 2016
means to enable him to pay the Court fee prescribed by law for the
plaint in such suit. However, Rule (5) contemplates the rejection of
application. Accordingly, the Court shall reject the application for
permission to sue as an indigent person where the applicant is not
an indigent person. Thus, a duty is cast upon the petitioner to
establish before the Court of law that he is an indigent person and
not having sufficient source of income. Two circumstances may be
considered by the Courts. One is that the person may have income
but such income may not be sufficient to meet out the Court
expenditure and the other circumstance would be, there is no
income at all and the petitioner is incapable of paying the Court fee
for institution of a suit. In both circumstances, it is necessary that
the Courts are bound to consider whether a person is absolutely
incapable of paying the Court fee or having income but not in a
position to pay the Court fee. For example, a person may be
earning a sum of Rs.15,000/- per month. He may plead that the
said amount is not even sufficient to meet out his family
expenditure and lead his livelihood. Therefore, he is not having
sufficient funds to pay the Court fee. Such circumstances cannot be
https://www.mhc.tn.gov.in/judis/
C.M.A.No.984 of 2016
construed as a valid ground for the purpose of granting permission
to institute a suit under Order 33 Rule 1 of C.P.C. Therefore, mere
fact that a person is not having sufficient income so as to pay the
Court fee, cannot be a ground. It is to be considered whether the
income derived is not only sufficient or the petitioner is absolutely
incapable of paying the Court fee for the purpose of instituting a
suit. If the Court accepts such a ground of insufficient funds in
general, there is a possibility of every person filing a petition under
Order 33 Rule 1 of C.P.C, for institution of a suit as an indigent
person. The very purpose and object of Order 33 Rule 1 of C.P.C.,
is to mitigate the sufferings of a person who is absolutely incapable
of paying the Court fee in order to establish his civil rights. Because
a person is not incapable of paying the Court fee, he cannot be
denied justice so as to establish his civil rights before the Court of
law. 'Capability' or 'incapability' is to be assessed strictly with
reference to the documents and evidence produced before the
Court of law. This being the principles to be adopted, the present
case reveals that the petitioners are possessing a land to the extent
of 0.86 acres. The second appellant, who is none other than the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.984 of 2016
daughter of the first appellant, got married, and she is living with
her husband. It is not established before the trial Court that the
second appellant is incapable of paying the Court fee.
8. Considering all these facts and circumstances, this Court is
of the considered opinion that the appellants have not
substantiated their indigences which is required under Order 33
Rule 1 of C.P.C. Therefore, the trial Court has rightly arrived a
conclusion that the petition is liable to be dismissed. This Court
does not find any infirmity in respect of the findings. Accordingly,
the Judgment and Decree dated 19.11.2015 in P.O.P.No.18 of
2012 stands confirmed and consequently, the Civil Miscellaneous
Appeal stands dismissed. No costs. Connected civil Miscellaneous
Petition is also closed.
05.01.2021
ssb
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
https://www.mhc.tn.gov.in/judis/
C.M.A.No.984 of 2016
S.M.SUBRAMANIAM, J.
ssb
To
The Additional Sub-Court, Villupuram
C.M.A.No.984 of 2016
05.01.2021
https://www.mhc.tn.gov.in/judis/
