Advocates:
['M/S I C VASUDEVAN', '', 'R NIRMALA', 'M/S C E PRATAP', '', 'V DHAMODHARAN', 'SPL GOVT PLEADER CS', 'FOR R']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.07.2019

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA

C.M.S.A.No.10 of 2016 and

CMP.No.4832 of 2016

Mariammal

... Appellant/ Appellant/ Petitioner

-vs-

1.P.Gunasekaran

2. N.Gunasekaran

3. Rajamanickam

4. District Collector,

Collectorate, Erode.

... Respondents/ Respondents/ Respondents

Prayer: Memorandum of Grounds of Civil Miscellaneous Second

Appeal filed under Order XLIII R 1 read with Section 104 and

Section 100 of CPC. against the decree and judgment dated

11.08.2015 passed in CMA.No.31/2014 on the file of the Principal

District Court, Erode, confirming the decree and judgment dated

27.6.2014 passed in P.O.P.No.1 of 2013 by the Principal Sub-

Court, Erode.

For Appellant

:: Mr.I.C.Vasudevan

For Respondents 1 to 3:: Mr.C.E.Pratap

For 4^th respondent :: Mr.A.Dev Narenderan,

Government Advocate (C.S.)

JUDGMENT

The present Civil Miscellaneous Second Appeal has been filed

against the decree and judgment dated 11.08.2015 passed in

CMA.No.31/2014 by the learned Principal District Judge, Erode,

confirming the decree and judgment dated 27.6.2014 passed in

P.O.P.No.1 of 2013 by the learned Principal Sub-Judge, Erode,

thereby rejecting the request of the appellant to accept her

prayer for exemption from paying the court fees as informa

pauperis .

https://hcservices.ecourts.gov.in/hcservices/

2.

Mr.I.C.Vasudevan, learned Counsel appearing for the

appellant would submit that the appellant filed a petition in

POP.No.1/2013 to declare the Sale Deed dated 18.03.2008 as null

and void since fraud was played on her by the respondents 1 to 3

misguiding her that there is a power of attorney in the guise of

mortgage deed for the loan obtained by the appellant/plaintiff.

But, subsequently, the respondents 1 to 3 obtained the signature

from the appellant/plaintiff in the sale deed dated 18.03.2008

and the same was also registered. As appellant is not having

any means to pay the court fee to prosecute the case filed

against the respondents 1 to 3/defendants 1 to 3, she has

pleaded before the trial court that she has left with no means

to raise money for payment of court fee. But the trial court

dismissed her prayer to adjudge the appellant/plaintiff as

informa pauperis citing a reason that the appellant failed to

disclose the house site having an extent of 1260 sq.ft. for

which a case is pending.

3.

The learned Counsel for the appellant would further

submit that as per Order 33 Rule 1 (a) of CPC, the suit property

which can be exempted need not be shown in the plaint. But

overlooking the Order 33 Rule 1 (a) of CPC., the trial court

wrongly refused the prayer to proceed her as informa pauperis.

Therefore, the appellant filed CMA.No.31/2014 before the learned

Principal District Judge, Erode. The learned Principal District

Judge also confirmed the order of the trial court adding mere

erroneous reasons. The reason cited by the I Appellate Court

shows that when the Power of Attorney was obtained on

28.09.2007, the sale deed was executed on 18.03.2008, but the

suit was filed in the year 2012 which is beyond the period of 3

years as per Article 59 of the Limitation Act, 1953. For filing

a suit to set aside a decree or instrument, the period of

limitation contemplated under Article 59 of the Limitation Act

is only 3 years. Since the appellant/plaintiff came to this

Court, according to the I Appellate Court, beyond the period of

3 years forgetting that the appellant/plaintiff has got the

knowledge of the sale deed executed only on 16.11.2011 and

without taking into account the date of knowledge, namely,

16.11.2011, the learned I Appellate Court has wrongly rejected

the appeal. Therefore, every reason given by the learned trial

court and the learned I Appellate Court had to be set aside and

the appellant/plain