Madras High Court
Venkatachalam vs Perumal on 5 July, 2022
CRP(PD)(MD)No.594 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(PD)(MD)No.594 of 2017 and
CMP(MD) No.2656 of 2017
1.Venkatachalam
2.Kumbakonam Hotel owners Association,
Rep by its Secretary Muruganantham ... Petitioners
Vs
1.Perumal
2.Ravichandran
3.Ramalingam @ Muthuramalingam
4.Muthusamy
5.Balaji
6.The District Collector,
Office of Collectorate,
Thanjavur. ... Respondents
Prayer: Petition filed under Article 227 of the Constitution of India, to set
aside the fair and decreetal order passed in P.O.P.No.164 of 2012, on the file
of the Principal Subordinate Court, Kumbakonam, dated 29.11.2016.
For Petitioner : Mr.M.R.S.Prabhu
For R1 : Mr.V.Meenakshi Sundaram
Legal Aid Counsel
For R2 to R5 : Given up
For R6 : Mr.G.V.Vairam Santhosh
Additional Government Pleader
1/6
https://www.mhc.tn.gov.in/judis
CRP(PD)(MD)No.594 of 2017
ORDER
This Civil Revision Petition is filed as against the fair and
decreetal order, dated 29.11.2016 passed in P.O.P.No.164 of 2012 by the
learned Principal Subordinate Judge, Kumbakonam.
2.The first respondent has filed the suit in P.O.P.No.164 of
2012, for the relief of declaration and also an application under Order VII
Rule 1 of Civil Rules of Practice and Order XXXIII Rule 1 and Section 151
of Civil Procedure Code, to declare him as a pauper for exemption of court
fee in the suit. The said application was allowed by the trial Court by order
dated 29.11.2016. Aggrieved over the same, the respondents 2 & 8 have filed
this Civil Revision Petition.
3.The learned counsel appearing for the petitioners submits that
the trial Court is erred in allowing the application without following the
procedure as contemplated under Order XXXIII Rule 6 of CPC and also the
suit is not maintainable in view of the provisions under Order XXXIII Rule
5(d) of CPC. According to the learned counsel for the petitioners, the suit in
https://www.mhc.tn.gov.in/judis
CRP(PD)(MD)No.594 of 2017
O.S.No.11 of 2001 has been filed as against the wife of the plaintiff for the
relief of specific performance and the judgment and decree in O.S.No.11 of
2001 was obtained under fraud on 30.03.2010 and now the plaintiff/husband
of the defendant in the earlier suit cannot take a plea that the suit was
obtained on fraud on his representation. The petitioner has given up the
respondents 2 to 8. There is no representation for the first respondent.
4.Considering the fact that this Civil Revision Petition is arising
out of P.O.P.No.164 of 2012, this Court appointed Mr.Meenakshi Sundaram,
a counsel who is having 15 years of practice, as a Legal Aid Counsel to assist
this Court, under Order XXXIII Rule 9(a) of Civil Procedure Code, to defend
the case of the first respondent.
5.Mr. Meenakshi Sundaram, learned counsel after perusing the
documents submits that the trial Court has not followed the procedure as
contemplated under Order XXXIII Rule 6 of CPC before passing the order in
P.O.P.No.164 of 2012.
https://www.mhc.tn.gov.in/judis
CRP(PD)(MD)No.594 of 2017
6.This Court considered the rival submissions made and also
perused the materials placed on record.
7.Admittedly, this Civil Revision Petition is arising out of
P.O.P.No.164 of 2012. Considering the averments made in the affidavit filed
in support of the petition in P.O.P.No.164 of 2012, the trial Court has passed
the order without issuing any notice to the Government Pleader to ascertain
as to whether the petitioner is an indigent person or not. Procedures have
been contemplated under Order XXXIII Rule 6 that before permitting the
person, a 10 days clear notice shall be given to the opposite party and the
Government Pleader for adducing evidence to disprove the contention raised
by the petitioner that he is indigent. But, in the case on hand, no such notice
has been issued to the Government pleader and the Court has not ascertained
the fact as to whether the petitioner is an indigent person or not. The order
has been passed merely based on the affidavit and the written statements
filed by the other side.
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CRP(PD)(MD)No.594 of 2017
8.Since the order of the trial Court has been passed even without
issuing any notice to the opposite party and the Government Pleader as
contemplated under Order XXXIII Rule 6 of Civil Procedure Code, the same
needs interference of this Court. Accordingly, this Civil Revision Petition is
allowed. The order passed by the trial Court in P.O.P.No.162 of 2012 is
hereby set aside and the matter is remanded back to the trial Court and the
trial Court shall decide the issue afresh after complying with the conditions
contemplated under Order XXXIII Rule 6 of Civil Procedure Code. This
Court places its appreciation to Mr.Meenakshi Sundaram, learned counsel for
his valuable assistance in this case. No costs. Consequently, connected
Miscellaneous Petition is closed.
05.07.2022
Index : Yes / No.
Internet : Yes / No.
vrn
To
The Principal District Court, Madurai.
https://www.mhc.tn.gov.in/judis
CRP(PD)(MD)No.594 of 2017
B.PUGALENDHI, J.
vrn
Order made in
CRP(PD)(MD)No.594 of 2017
05.07.2022
https://www.mhc.tn.gov.in/judis
