Madras High Court
A.A.Joseph vs M.Cj.C Long More By Power Agent ... on 4 January, 2021
C.M.A.No.286 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.286 of 2010
John Brown Trust
rep.by its Trustee,
1.A.A.Joseph
S/o.Late A.E.Antony,
Creswell Cottage, Hospital Road,
Ootacamund. ..Appellant
Vs.
1.Michael Charles John Chown Longmore
Vale View House, High Street,
Elham, Nr.Canterbury,
Kent, CT 4 6SY, England.
2.J.Prabhu
3.Director, Higginbothamams Pvt Ltd.,
No.116, Anna Salai, Chennai – 600 002
Having its Show room at 125, Oriental Building
Commissioners Road, Ootacamund.
4.K.F.Jacob
5.Raunny
6.P.K.Damodaran
7.The Superintendent of Police,
Police Control Room,
Door No.127, Oriental Building,
Commissioner's Road,
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C.M.A.No.286 of 2010
Ootacamund.
8.”Gonsalves & Gonsalves
A Partnership firm, rep.by
its partners J.Prabhu and kenneth
Gonsalves, Door No.128,
Oriental Buildings,
Commissioner's Road,
Ootacamund.
9.T.P.N.Nambiar
10.D.Robinson
11.Miss.Chandra
12.Mrs.Selvam Mary
13.Mrs.Susan Daniel
14.The Inspector of Plantations,
Ootacamund, C/o.The Commissioner of Labour,
DMS Compound, Teynampet, Chennai and
having its office at Door No.130, Oriental
Building, Commissioner's Road,
Ootacamund.
15.Prakash Damodaran
16.Mary Browne
Rep.by its alleged Administrators,
1.M.CJ.C Long More by power agent J.Prabhu
2.J.Prabhu
Vale View House, High Street, Elham
Nr.Canterburry, Kent, CT 4 6sY, England.
17.Alexander
18.Lawrence
19.Antony Susai
20.Raju Susai
21.The State of Tamil Nadu,
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C.M.A.No.286 of 2010
Rep.by the District Collector of Nilgiris
Collectorate, Ootacamund.
22.Mrs.Kamala Krishnamoorthy
23.K.Rajkumar
24.K.Sampathkumar
25.K.Ashok Kumar
(Respondents 4 to 6, 1 to 13, 15, 17 to 20
23 & 25 are given up.) ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1 of
C.P.C., against the order dated 17.08.2009 in O.P.No.34 of 2004 on the
file of Principal District Court, Udagamandalam.
For Appellant : R.Subramanian
For Respondents : Mr.Hemanath Ragu
For M/s.S.Ramasubramaniam
Associates[For R3]
Mr.S.Jaganathan
Government Advocate (CS)
[For R7, R14 & R21]
No appearance for R2, R8 & R16
Tapal Due for R1 & R2
R9 – Died
R4 to R6, R10 to R13, R15, 17 to
20, R23 & R25 – Given Up
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C.M.A.No.286 of 2010
JUDGMENT
The Fair and Decreetal order dated 17.08.2009 passed in
O.P.No.34 of 2004 is sought to be set aside in the present Civil
Miscellaneous Appeal.
2. The petitioner states that the trial Court has not considered the
spirit of Order 33 Rule 5 C.P.C., The provision requires that the Court
must ascertain whether the allegations set out in the petition is sufficient
enough for the purpose of granting the relief. It is further contended by
the petitioner that the Court is not expected to conduct a Roving enquiry
into the merits of the claim set out in the suit by the person, who is filing
a petition to declare as an indigent person.
3. The learned counsel for the appellant reiterated that the Trial
Court has committed an error in not considering the petition for the
purpose of granting permission to the appellant to sue as an indigent
person.
4. It is not necessary to go into the issues raised in the appeal. It is
sufficient if the ingredients of Order 33 Rule 5 is considered or not.
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C.M.A.No.286 of 2010
Order 33 Rule 5 Sub Clause B contemplates that “the court shall reject
an application for permission to sue as an indigent person, where the
applicant is not an indigent person”
5. Admittedly, the appellant is a Private Trust namely John Brown
Trust. O.P.No.34 of 2004 was instituted before the District Judge at
Udagamandalam to permit the petitioner Trust to file the suit as an
indigent person. Admittedly, the appellant Trust is having large number
of properties, which all are valuable. The litigation is also relating to the
properties.
6. Under these circumstances, this Court is of the considered
opinion that the appellant Trust cannot be construed as an indigent
person as contemplated under Order 33 Rule 5 of C.P.C., The very fact
that the appellant is a Private Trust, possessing large number of
properties is evident to establish that the petitioner is not an indigent
person. Therefore, there is no reason to interfere with the orders passed
by the Trial Court. The Trial Court, while deciding Ponit No.1, whether
the petition is without cause of action has narrated the details of the
properties possessed by the petitioner Trust. Even at the time of deciding
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C.M.A.No.286 of 2010
the petition by the trial Court in the year 2009, the property was worth
about Seven Hundred Lakhs and under these circumstances, the
reasonings given by the trial Court in its order is certainly candid and
convincing and in accordance with the well established principles. The
trial Court further arrived a conclusion that the petitioner failed to make
out a cause of action as contemplated under Order 33 Rule 7(d) of
C.P.C., to grant a relief under Order 33 Rule 1 C.P.C.
7. In view of the facts and circumstances, this Court do not
inclined to interfere with the findings arrived by the trial Court.
Therefore, the Fair and Decreetal order dated 17.08.2009 passed in
O.P.No.34 of 2004 stands confirmed and accordingly, C.M.A.No.286 of
2010 stands dismissed. No costs.
04.01.2021
kak
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
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C.M.A.No.286 of 2010
To
The Principal District Court,
Udagamandalam.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.286 of 2010
S.M.SUBRAMANIAM, J.
kak
C.M.A.No.286 of 2010
04.01.2021
https://www.mhc.tn.gov.in/judis/
