Madras High Court
Kandasamy vs Santhosssini on 21 October, 2024
C.R.P.(PD)No.4179 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.10.2024
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.(PD)No.4179 of 2024
and C.M.P.No.23194 of 2024
Kandasamy .. Petitioner
Vs
1.Santhosssini
2.Arun Prasath
3. Mohanraj
4. The Assistant Engineer,
TANGEDCO, Mettur Taluk,
Salem.
5. The Tahsildar,
Mettur Taluk, Salem.
6.The State,
Represented by District Collector,
Salem, Salem District. .. Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair order dated 21.06.2024 in Pauper
https://www.mhc.tn.gov.in/judis
1/20
C.R.P.(PD)No.4179 of 2024
Original Petition No.260 of 2022 on the file of the Additional District
Court (Fast Track Court), Mettur.
For Petitioner : Mr.Athiban Vijay A.K.
For R4 : Ms.Dhanalakshmi
for Mr.S.T.Raja, Standing Counsel
For RR5 & 6 : Mr.R.Siddharth, Government Advocate
ORDER
This civil revision petition arises against the order passed by the learned Additional District Judge at Mettur in Pauper O.P.No.260 of 2022 dated 21.06.2024.
2. The civil revision petitioner is the 1st defendant in the said proceedings. P.O.P.No.260 of 2022 was commenced by respondents 1 to 3 before me, seeking the relief of suing in forma pauperis. The relief sought for in the main suit is for directing the civil revision petitioner to handover B schedule mentioned property and to, consequently, evict him from the same, awarding Rs.12 lakhs as damages for illegal trespass, use & occupation of the property for interest on the compensation amount https://www.mhc.tn.gov.in/judis 2/20 C.R.P.(PD)No.4179 of 2024 and Rs.20,000/- per month towards damages till handing over of possession and for a mandatory direction to the Assistant Engineer, TANGEDCO to transfer the E.B. connection from the name of the civil revision petitioner to the names of respondents 1 to 3 and for costs.
3. The case of respondents 1 to 3 as plaintiffs is that the A schedule mentioned property was in possession and enjoyment of their father one Mr.Murugan. He had constructed a house in which he was residing till his lifetime. After his death, the plaintiffs have succeeded to the estate. They claimed that the civil revision petitioner/1st respondent in P.O.P. had been hired for the purpose of doing some civil work in the first floor of the A schedule mentioned property. Taking advantage of the fact that the deceased Murugan, having lost his wife, had an indifferent attitude towards life, the civil revision petitioner occupied a room on the ground floor of the A schedule mentioned property.
4. During the course of transaction between Murugan and himself, the civil revision petitioner had procured some signatures on blank stamp papers. Taking advantage of these signatures, the civil revision https://www.mhc.tn.gov.in/judis 3/20 C.R.P.(PD)No.4179 of 2024 petitioner/1st defendant is said to have fabricated an unregistered sale deed. On that basis, he had mutated the records with TANGEDCO from the name of Murugan to himself. Hence, the suit for the aforesaid reliefs.
5. The Court fee that has to be paid for the multiple reliefs that was sought for by the plaintiffs came to a sum of Rs.1,02,030/-. Pleading that they are not in a position to pay the amounts demanded as Court fee, they moved the indigent petition.
6. The learned Additional District Judge at Mettur issued notice to the respondents in the pauper petition.
7. The civil revision petitioner filed a detailed counter on the merits as well as on the plea of indigent circumstances of respondents 1 to 3. The civil revision petitioner pleaded that the 1st plaintiff/1st respondent herein is working in an Information Technology Company at Chennai and is drawing a monthly salary of Rs.60,000/-. Apart from that, he urged that the family is receiving family pension from TANGEDCO, as late Murugan was working in Mettur Thermal Power Station as an Assistant Executive Engineer. The 4th respondent herein filed a counter which was https://www.mhc.tn.gov.in/judis 4/20 C.R.P.(PD)No.4179 of 2024 adopted by the respondents 5 & 6.
8. After recording of evidence in which the 1st respondent herein examined herself as P.W.1 and marked Exs.P1 to P8, the learned Judge allowed the pauper petition. Hence, this revision.
9. Heard Mr.Athiban Vijay A.K. for the civil revision petitioner and Ms.Dhanalakshmi for Mr.S.T.Raja, Standing Counsel, for the 4th respondent and Mr.R.Siddharth, learned Government Advocate, for respondents 5 & 6.
10. Mr.Vijay contends that in terms of Order XXXIII Rule 1A of the Code of Civil Procedure, 1908, there should have been an enquiry conducted by the Chief Ministerial Officer of the Court and since the said procedure was not followed, the grant of relief in P.O.P.No.260 of 2022 by the learned Trial Judge is erroneous. He argues that in terms of the order passed in C.M.P.No.27998 of 2019 in A.S.SR.No.97129 of 2019 dated 03.02.2020 (Order of the Hon'ble Mr.Justice S.M.Subramaniam), the procedure that had been laid down had not been followed. He relies upon a judgment of the Supreme Court in Mathai M.Paikeday v. C.K.Antony, (2011) 13 SCC 174, wherein it was held that the provisions of the Order XXXIII Rule 1A is mandatory and failure to https://www.mhc.tn.gov.in/judis 5/20 C.R.P.(PD)No.4179 of 2024 follow the same, is fatal to the said application.
11. I pointed out to Mr.Vijay that, this Court, as early as in Chinnamani Nadar v. Devagirubai Rajan, (1958) 2 MLJ 93 and Kalimuthu Servai and others v. Govindaswami Servai and others, AIR 1961 Madras 71 = (1960) 2 MLJ 313, had taken a view that where a petition under Order XXXIII is allowed, the private defendant is not entitled to maintain a revision against the said order. This view of the Madras High Court had also been accepted by the Punjab and Haryana High Court in Rajiv Garg v. Priti Rani, 2003 (1) ILR Punjab and Haryana 133.
12. I should point out here that the C.P.C. itself grants a right to the defendant to file an application to revoke the permission to sue as an indigent under Order XXXIII of the Code. Such a right has not been granted under Order XXXIII Rule 8 of the Code, when permission is granted by the Court.
13. In order to give an opportunity to Mr.Vijay to answer this issue, I posted the matter today i.e. 21.10.2024. In response, Mr.Vijay points out that subsequent to the view taken by this Court, the Supreme https://www.mhc.tn.gov.in/judis 6/20 C.R.P.(PD)No.4179 of 2024 Court, in Shri M.L.Sethi v. Shri R.P.Kapur, (1972) 2 SCC 427, had held that the defendant has a say when it comes to an application for indigency and in case the order goes against him, the defendant is entitled to maintain a revision. He relies upon paragraph 10 of the said judgment to press home this point. He also relies upon a judgment of the Kerala High Court in Jagadamma v. Sheela and another, (2021) 3 KLT 347 (DB) to substantiate the said plea.
14. I have carefully considered the submissions of Mr.Vijay and have perused the entire records.
15. The narration of the aforesaid facts would show that respondents 1 to 3 are orphans. Their mother had predeceased their father in 2016 and their father had passed away in the year 2021.
16. The purpose of engrafting Order XXXIII in the Code of Civil Procedure is to enable a person who is unable to pay the Court fees to come to approach the Court and seek for remedy. Access to justice being a fundamental right, the Code of Civil Procedure as well as the Constitution of India guarantee a person a right to approach the Court, https://www.mhc.tn.gov.in/judis 7/20 C.R.P.(PD)No.4179 of 2024 even if they are not in a position to pay the Court fees. This is because, no party must be without a remedy on account of their financial circumstances. It is the sovereign duty of the State to give a party access to Courts and justice. A litigant must not be denied the said right on account of the fact they are in penurious circumstances.
17. When a indigent application is allowed, this Court in Chinnamani Nadar v. Devagirubai Rajan, (1958) 2 MLJ 93 and Kalimuthu Servai and others v. Govindaswami Servai and others, (1960) 2 MLJ 313, in clear and categorical terms, has held that it is primarily for the State to challenge the correctness of the orders granting leave to sue in forma pauperis, as it is the State which interested in the payment of Court fees, in case a person able to do so. The view of Hon'ble The Chief Justice Mr.M.Ananthanarayanan, in the aforesaid judgment, followed the view of the Hon'ble Justice Mr.Ganapatia Pillai in Chinnamani Nadar v. Devagirubai Rajan, 71 Madras LW 43.
18. The Punjab and Haryana High Court too had held that where the Trial Court had accepted the plea of in forma pauperis, the High Court should not interfere with the said order, even if it had been https://www.mhc.tn.gov.in/judis 8/20 C.R.P.(PD)No.4179 of 2024 erroneously granted, as such an erroneous order would not amount to material irregularity for it to be revised by way of a revision.
19. Mr.Vijay's argument that the view taken by the Madras High Court is no longer good law in the light of the judgment passed by the Supreme Court in Shri M.L.Sethi v. Shri R.P.Kapur, (1972) 2 SCC 427 requires some consideration. The Supreme Court, as urged by Mr.Vijay, had held that by virtue of an order passed under Order XXXIII, the plaintiff is entitled to initiate a litigation and since a defendant has an immunity from a litigation unless requisite Court fee is paid, it creates a valid right in the defendant.
20. A careful perusal of the facts leading to the disposal of the appeal before the Supreme Court would show that the appellant in that case had sought for the relief of discovery and inspection with respect to the bank accounts that had been maintained by the plaintiff, who wanted to sue in forma pauperis. The said relief had been refused to the defendant and hence, he was on appeal before the Supreme Court. The Supreme Court pointed out that the defendant, who is interested in defeating the application taken out for in forma pauperis, is entitled to https://www.mhc.tn.gov.in/judis 9/20 C.R.P.(PD)No.4179 of 2024 avail the remedy of discovery and inspection, as there are no other procedures under which a party can bring to the notice of the Court that the plaintiff is possessed of sufficient funds. The observation that the defendant is having a right to establish the financial position of the plaintiff, in order to defeat the application under Order XXXIII, cannot be telescoped into the right of a defendant to prefer a revision, when the application filed for in forma pauperis had been allowed after enquiry. Both operate on two different planes.
21. My reading of the judgment of the Supreme Court would lead me to the conclusion that pending the application for in forma pauperis, the defendant is entitled to take all the defence available to him in order to defeat the said application. This includes his right to summon records and initiate application for discovery and inspection in order to substantiate that the plaintiff is possessed of sufficient funds to pay the Court fee. This right given to the defendant to defeat the application cannot be expanded to include a right of the defendant to prefer a revision against the order challenging the proceedings granting the relief sought for by the paupers.
22. In fact the three Judges Bench of the Supreme Court in Sri https://www.mhc.tn.gov.in/judis 10/20 C.R.P.(PD)No.4179 of 2024 Rathna Varma Raja v. Vimala, AIR 1961 SC 1299 pithily observed as follows: “The Court Fees Act was enacted to collect revenue for the benefit of the State and not to harass the contesting party with a weapon of defence to obstruct the trial of an action”.
23. The view taken by the Madras High Court that the revision is not maintainable at the instance of the defendant arises in a situation post the grant of the order. The judgment of the Supreme Court deals with the situation prior to granting of the order. Hence, I am not in a position to hold that the views of the Madras High Court and that of the Punjab and Haryana High Court are no longer good law in view of Shri M.L.Sethi v. Shri R.P.Kapur, (1972) 2 SCC 427.
24. The consistent view of this Court starting from Chinnamani Nadar v. Devagirubai Rajan, 71 Madras LW 43 affirmed in Kalimuthu Servai and others v. Govindaswami Servai and others, (1960) 2 MLJ 313 and followed in Chemicals & Plastics Limited v. Karisiammal, (1993) 2 LW 254 continues to hold good even as on today. This is because, it is the State which is interested in collecting the revenue that https://www.mhc.tn.gov.in/judis 11/20 C.R.P.(PD)No.4179 of 2024 comes as a Court fee and the private defendant is not entitled to take into his hands the role that is to be played by the State.
25. In the facts of this case, it is pertinent to point out that the State of Tamil Nadu, though has been arrayed as a defendant, has not chosen to challenge the order of the learned Additional District Judge on 21.06.2024. When the State, which is mainly responsible for the revenue, is not interested, I am not willing to grant the said right to a private defendant who is more interested in avoiding the litigation from going into the merits of the case.
26. In so far as the judgment referred to by Mr.Vijay in Jagadamma v. Sheela and another, (2021) 3 KLT 347 is concerned, a careful perusal of the judgment would show that in the facts of that case, the plaintiff, who was seeking to sue in forma pauperis, had suppressed from the Court that she had landed properties of 1.56 acres, gold ornaments worth Rs.5 lakhs and a monthly income of Rs.25,000/- earned from the usufructs over the disputed properties. The learned Subordinate Judge, taking into consideration that there had been suppression of material facts, had denied the plaintiffs the right to sue in https://www.mhc.tn.gov.in/judis 12/20 C.R.P.(PD)No.4179 of 2024 forma pauperis which was confirmed by the appellate Court. This judgment too, in my opinion, does not come to the rescue of the civil revision petitioner. In fact, the Division Bench of the Kerala High Court in the judgment cited above had no occasion to deal with the issue that directly arises in the present case namely, whether the defendant has a right to prefer a revision, when the Trial Court has allowed the application to sue in forma pauperis.
27. This situation prevails even with respect to the judgment which Mr.Vijay relies upon in T.O.Thangavel and others v. Dr.V.Subramaniyam and others, 2018 SCC OnLine Madras 6569. The learned single Judge of this Court (Justice Mrs.S.Ramathilagam) held that as the plaintiff in the facts of that case had possessed of sufficient funds, he is not entitled to seek for declaration of indigency.
28. To complete the narration, I have to state that the Hon'ble Mr. Justice S.Jagadeesan, in A.Pauliah v. T.Gnanasigamani, (1998) 2 LW 789, has held that a revision could be filed by a defendant challenging the permission to sue informa pauperis. A careful analysis of that case shows that the respondent in that case had suppressed material facts from the https://www.mhc.tn.gov.in/judis 13/20 C.R.P.(PD)No.4179 of 2024 Court. It was in those circumstances, that Court came to the conclusion that the respondent therein is not entitled for the relief under Order XXXIII. In this case, the plea of suppression of materials facts does not arise.
29. Though this discussion is sufficient to dispose of this revision, I have to deal with the submissions made by Mr.Vijay that the Court had not followed the procedure under Order XXXIII Rule 1A of the Code of Civil Procedure and therefore, the order deserves to be set aside on procedural irregularity.
30. A reading of Order XXXIII Rule 1A shows that where a suit is instituted by a person seeking to sue in forma pauperis, at the first instance, an enquiry has to be conducted by the Chief Ministerial Officer of the Court. The said provision further directs that it is the discretion of the learned presiding officer of the Court to accept the report of the Chief Ministerial Officer or to independently conduct an enquiry into the said proceedings. This provision merely enables the Court to conduct the enquiry by the Chief Ministerial Officer instead of conducting the enquiry by itself. It is the discretion of the learned presiding officer to conduct the proceedings, if he or she so desires by herself, instead of relying upon the https://www.mhc.tn.gov.in/judis 14/20 C.R.P.(PD)No.4179 of 2024 report of the Chief Ministerial Officer. In the facts of this case, it is clear that the learned Additional District Judge at Mettur instead of relying upon the report of the Chief Ministerial Officer chose the later option and conducted the enquiry by herself. Therefore, there is no infraction of Order XXXIII Rule 1A of the Code.
31. Even if I were to consider that the revision is maintainable on facts, I am not able to persuade myself to agree with the submission of Mr.Vijay. During the course of enquiry as pointed out above, the 1 st respondent herein entered the witness box and deposed in chief and was cross-examined in extenso by the defendants including the civil revision petitioner. Here plea of lack of ability to pay the Court fees remains unshaken.
32. The civil revision petitioner/1st defendant had pleaded that the plaintiff is drawing considerable salary as an employee of TATA Consultancy Service in Chennai. This attack of the civil revision petitioner/1st defendant fell to the ground, when the 1 st respondent marked her salary slip showing that she is drawing only a sum of Rs.27,000/- per month. In addition, the 2nd respondent is said to be a student and the 3 rd https://www.mhc.tn.gov.in/judis 15/20 C.R.P.(PD)No.4179 of 2024 respondent is a mentally challenged person. In other words, the fund that is available with the family of respondents 1 to 3 is the salary of the 1 st respondent, which is only Rs.27,000/-. Apart from the 1st respondent, two other human beings, which includes a mentally challenged person, would have to survive on this meagre amount. Obviously, unless and until the 1 st respondent decides not to spend a single penny towards the family and to maintain herself, she would have to wait for at the least four months in order to pay the requisite Court fees. Law does not demand that a litigant should stay hungry for such a long period of time in order to knock on the doors of the Court.
33. The additional plea of Mr.Vijay is that the father of respondents 1 to 3 was working as an Assistant Engineer in Mettur Thermal Power Station and would have received retirement benefits which can be utilised for the purpose of paying the Court fee. In case the retirement benefits had, in fact, been received by respondents 1 to 3, then Mr.Vijay would have been in a stronger position. However, during the course of cross-examination of the 1st respondent by respondents 4 to 6, she clearly stated that they had applied for retirement benefits on the https://www.mhc.tn.gov.in/judis 16/20 C.R.P.(PD)No.4179 of 2024 death of their father, but till date TANGEDCO had not released the said payment.
34. Pauperism is dealt with as regards the financial ability that a person possesses on the day of filing the petition. In anticipation of the amounts that they may receive, an application under Order XXXIII cannot be decided. Therefore, the plea of the civil revision petitioner/1st defendant that since respondents 1 to 3 are in a position to receive pensionery funds, they should not be granted the benefits under Order XXXIII fails.
35. I have to point out one more aspect in this regard. The Court has the power to reject an application filed for in forma pauperis under Order XXXIII Rule 1A, in case it comes within the scope of Order XXXIII Rule 5. Mr.Vijay is not in a position to point out that any of the requirements under Order XXXIII Rule 5 (a) to (g) stand satisfied in the facts of the present case. I should add here that, Order XXXIII Rule 1A is not one of the grounds contemplated under Order XXXIII Rule 5. https://www.mhc.tn.gov.in/judis 17/20 C.R.P.(PD)No.4179 of 2024
36. Finally, the learned Additional District Judge at Mettur had the benefit of looking at the demurrer of the witness before she arrived at a conclusion that she did. Sitting in revision and I am not in a position to re-appreciate the evidence which Mr.Vijay would want me to do. The learned Trial Judge, who had gone through the evidence, had come to the conclusion that respondents 1 to 3 are entitled to sue as in forma pauperis. The 1st defendant, for whom Mr.Vijay has vehemently argues, had not even bothered to enter the witness box, to tender evidence on his own and thereafter, subject himself to cross-examination.
37. That being the situation, I am not inclined to interfere with the said order. I would take the approach that has been taken by the Hon'ble Justice Mr.Ganapatia Pillai and Hon'ble The Chief Justice Mr.M.Ananthanarayanan and hold that where an in forma pauperis application has been allowed by the Trial Court after recording evidence, the same is not susceptible to revision at the instance of the private defendant to the proceedings. This does not prevent the State from preferring a revision, in case it has material to show that the plaintiffs are possessed of funds and have deliberately avoided paying the Court fees. https://www.mhc.tn.gov.in/judis 18/20 C.R.P.(PD)No.4179 of 2024
38. In the light of the above discussions, I do not find any merits in the revision. The civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
21.10.2024 Index:Yes/No Speaking order/Non-speaking order Neutral Citation:Yes/No kj To
1. The Additional District Court (Fast Track Court), Mettur.
2. The Assistant Engineer, TANGEDCO, Mettur Taluk, Salem.
3. The Tahsildar, Mettur Taluk, Salem.
4.The State, Represented by District Collector, Salem, Salem District.
https://www.mhc.tn.gov.in/judis 19/20 C.R.P.(PD)No.4179 of 2024 V. LAKSHMINARAYANAN,J.
kj C.R.P.(PD)No.4179 of 2024 and C.M.P.No.23194 of 2024 21.10.2024 https://www.mhc.tn.gov.in/judis 20/20