Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4681 (MAD)

M. Sivakumar (died) v. Rajapalani

2011-11-30

B.RAJENDRAN

body2011
Judgment :- 1. This appeal is listed today for admission and I heard the counsel for the appellants and perused the materials available on record. 2. The appellants have come forward with this appeal aggrieved by the order dated 07.03.2011 made in P.O.P. No. 42 of 2004 on the file of the Principal District Court, Cuddalore, by which the Original Petition filed by them was dismissed by the Court below. 3. According to the appellants, the original Petition was filed by the deceased Sivakumar under Order 33 Rule 1 of C.P.C seeking permission to sue as a forma pauperis. The Original Petition was filed praying for specific performance of the agreement of sale dated 02.06.1997. During the pendency of the Original Petition, the first petitioner Sivakumar died and the appellants, as his legal heirs, were impleaded as petitioners 2 to 4 in the above said OP No. 42 of 2004 and claimed that they be permitted to prosecute the above Original Petition as forma pauperis. Even though the Court below impleaded the appellants as legal heirs of the deceased Sivakumar and arrayed them as petitioners 2 to 4, the relief sought for to permit them to sue as forma pauperis was rejected by the Court below and they were directed to pay the Court fee within two months so as to prosecute the Original Petition. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed. 4. It is seen from the records that earlier the third respondent has filed I.A. No. 2483 of 2005 before the Court below seeking rejection of the Original Petition and the same was dismissed on 29.04.2010. As against the same, the third respondent filed CRP No. 2667 of 2010 before this Court and by order dated 19.08.2010, the same was allowed directing the Court below to dispose of I.A. No. 2483 of 2005 and O.P. No. 42 of 2004 on merits and in accordance with law, within three months from the date of receipt of a copy of the order. After remand, when the Court below had taken up I.A. No. 2483 of 2005 for hearing, the Original Petitioner namely Sivakumar, husband of the first appellant herein and father of the appellants 2 and 3 herein died. After remand, when the Court below had taken up I.A. No. 2483 of 2005 for hearing, the Original Petitioner namely Sivakumar, husband of the first appellant herein and father of the appellants 2 and 3 herein died. On the death of the sole Petitioner, his legal heirs, the appellants, have filed an application to implead them as legal heirs so as to enable them to prosecute the Original Petition. The petition to implead the appellants was allowed. Thereafter, the court below, by the impugned order, held that in the absence of specific pleading and compliance of the mandates of Order 33 of Civil Procedure Code, the appellants cannot be permitted to sue the Original Petition as pauper and they were directed to pay the Court fee within two months so as to enable them to prosecute the Original Petition. The Court below specifically found that the appellants are carrying on jewellery business and therefore it cannot be said that they are not in a position to pay the court fee. 5. At the time of admission of this appeal, this Court specifically asked the learned counsel for the appellant as to whether the appellants are carrying on jewellery business and if so whether there is any justification to permit them to sue the Original Petition as pauper merely because their father, original Petitioner Sivakumar, sought such a relief before the Court below, the learned counsel for the appellant fairly submitted that the appellants are carrying on jewellery business and they will be in a position to pay the entire court fee. That apart, from the records, it is seen that the present appellants did not file any application separately to treat them as informa pauperis but they only filed an application to implead themselves as legal heirs of the original petitioner Sivakumar, who sought permission to prosecute the Original Petition as pauper. Even in the application seeking to implead themselves as legal heirs, it was not stated by the appellants that they are not in a position to pay the court fee and therefore they cannot be permitted to sue the Original Petition as pauper. Further, the appellants have also not taken any notice to the District Collector to confirm their status as pauper, as required under Law. Further, the appellants have also not taken any notice to the District Collector to confirm their status as pauper, as required under Law. Even in the evidence of PW1, who is the fourth appellant herein, he has admitted that he had purchased a commercial building in Cuddalore and carrying jewellery business thereon. 6. Order 33 of Civil Procedure Code categorically states that the person, who wants to treat him as informa pauperis should plea that he is not in a position to pay the court fee and should be treated as pauper. In the absence of such a plea by the appellants, they cannot be permitted to be treated as pauper and therefore, the Court below is right in rejecting the prayer of the appellants to treat them as pauper. I do not find any reason to interfere with the well considered order passed by the Court below. 7. In the result, the Civil Miscellaneous appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.