Madras High Court
K.Ramakrishnan vs Pazhanivel on 20 June, 2025
C.R.P.No.51 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.06.2025
CORAM
THE HON'BLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.No.51 of 2019
and C.M.P.No.500 of 2019
Janakiammal (Deceased)
1.K.Ramakrishnan
2.K.Swaminathan
3.K.Selvi Alamelu
(Petitioners 1 to 3 brought on record
as legal representatives of deceased
sole petitioner by order of the Court
dated 20.06.2025 by VLNJ) .... Petitioners
-Vs-
1.Pazhanivel
2.Kokila @ Kokilambal
3.Thangam .... Respondents
Prayer : Civil Revision Petition under Article 227 of the Constitution of India against
the fair and decreetal order dated 18.02.2016 made in O.P.No.4 of 2010 on the file
of the learned Principal Sub Judge, Pondicherry.
For Petitioner : Mr.S.P.Sudalayandi
For Respondent : Not ready in Notice - for R1
Served, No appearance - R2
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C.R.P.No.51 of 2019
ORDER
This Civil Revision Petition challenges the order passed by the learned
Principal Subordinate Judge, Pondicherry in O.P.No.4 of 2010 dated 18.02.2016.
2. O.P.No.4 of 2010 had been presented for declaration of title and for
recovery of possession from defendants 2 and 3 after removing the superstructure
raised thereon and for costs. The Court fee payable by the petitioner is
Rs.35,625.50/-. Pleading that she is not in a position to pay the court fee as she is
advanced in age (85 years on the date of presentation of the plaint), she presented
the Original Petition as an indigent person.
3. In the said O.P., the petitioner has pleaded that she does not own or
possess any immovable property other than the subject matter of dispute. Notice
was ordered to the respondents. The respondents had also engaged a counsel and
resisted the application seeking to sue the in forma pauperis.
4. On 01.11.2014, the plaintiff entered the witness box and deposed in
support of her pleadings. She has stood by the averments made in the petition.
On the date of tendering of the evidence, the plaintiff / petitioner was aged about
91 years. During the course of cross examination, the learned counsel for the
defendants had suggested that the plaintiff is wearing ornaments. The plaintiff had
responded stating that they are made of artificial gold and are not gold articles.
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She also denied the suggestion that she owns an immovable property in Chennai.
5. Learned trial Judge, by the impugned order, dismissed the petition holding
that as the petitioner has not proved that the articles are not made of gold and
further that she does not own any property, she is not entitled to sue in forma
pauperis. Another reason given by the learned trial Judge is that there is non-
compliance with Order XXXIII Rule 6 of the Code of Civil Procedure. Consequent to
this discussion, the trial Court dismissed the petition. Hence, this revision.
6. I heard Mr.Sudalayandi for the petitioners. The respondents, though
served, have not entered appearance before this Court. I have gone through the
materials placed on record.
7. It is a settled position of law that a party can prove the positive aspect of
the case and cannot be called upon to prove the negative. It is the assertion of the
defendants that the plaintiff is possessed of funds. The burden then lies on the
defendants to come up before the Court and give evidence to that effect. A perusal
of the judgment of the trial Court shows no evidence has been let in by the
defendants to disprove the financial incapacity of the petitioner. Shifting the burden
of proof on the petitioner to disprove the allegations made by the defendants is to
turn the law of evidence on its head.
8. Apart from that, under Order XXXIII Rule 6 of the Code of Civil Procedure,
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it is the duty of the Court to fix a date for hearing and direct the party to give notice
to the Government Pleader. For that fact, the learned Government Pleader has not
been put on notice, the Court need not have dismissed the application of the
petitioner.
9. In the light of the above considerations, the order of the learned trial
Judge in O.P.No.4 of 2010 dated 18.02.2016 is set aside. At this stage, a
submission was placed by Mr.Sudalayandi. He states that the children of the
original petitioner are not in a position to pay the Court fees. He states that if
sufficient time is granted, the Court fees will be paid and the suit can be proceeded
as a normal suit. Hence, the newly impleaded parties are granted time till
31.07.2025 to pay the Court fees. On payment of such court fees, the learned
trial Judge is requested to number the suit as a regular suit and proceed in
accordance with law.
10. This Civil Revision Petition is ordered accordingly. No costs.
Consequently, connected miscellaneous petition is closed.
20.06.2025
Neutral Citation : Yes/No
KST
To
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The Principal Subordinate Judge
Pondicherry.
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V. LAKSHMINARAYANAN, J.
KST
20.06.2025
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