A petitioner seeking to sue as an indigent person under Order 33 Rule 1 C.P.C. bears the burden of proof to establish indigency through evidence; mere assertions are insufficient, and the court must consider the capacity to raise funds, not merely possession of property.

J U D G M E N T

The Civil Miscellaneous Appeal is directed against the order passed in P.O.P.No.26 of 2021, dated 10.04.2024, on the file of the Principal District District Court, Theni, in dismissing the petition filed under Order

33 Rule 1 of the Code of Civil Procedure.

2. The appellants are the petitioners/proposed plaintiffs and they have filed a suit under Order 33 Rule 1 and Order 7 Rule 1 of C.P.C., to declare them as indigent persons and to permit them to institute the suit without paying the Court fees. The petitioners have claimed the relief of declaration that the suit properties are belonging to them and for recovery of possession.

3. It is pertinent to mention that the petitioners have valued the suit properties for the purpose of Court fees and jurisdiction at Rs.1,65,68,000/-

and the proposed Court fee to be payable is shown as Rs.4,97,040/-.

4. The petitioners, in their petition filed under Order 33 Rule 1, after narrating their main case contentions, has stated that they are indigent persons, that they are having no other properties, except the suit properties; that they are also not having any income and they are eking out their livelihood only on daily coolie wages; that they have not entered into any agreement with respect to the suit properties and that they have not alienated any property nor purchased any property within six months prior to the filing of the suit.

5. The respondents 5 to 14, 16 and 17 filed a counter disputing the plaint contentions and further stated that the petitioners are owning houses and landed properties; that they are getting income from agricultural operations from their own lands and from the lease hold lands; that the petitioners are Government servants and that therefore, they are not entitled to get the relief claimed.

6.The nineteenth defendant/District Collector, Theni filed a counter statement raising objections stating that if exemption is granted, the Government will suffer loss to the tune of Rs.4,97,040/-; that the third petitioner's son deceased Azaharsamy was owning land in S.No.2560/1 W2 in patta No.2568 with a tiled house therein, having value of Rs.5 lakhs; that the third petitioner's another son Kaliraj is owning land in S.No.2560/1W 3 in patta No.2569 and he constructed a two storied RC building therein having value of Rs.30 lakhs; that the said Kaliraj's son is now working in Military; that the other petitioners are residing in other Districts; that the petitioners are not indigent persons and they are having properties and income therefrom and that therefore, their petition is liable to be dismissed.

7. During enquiry, neither the petitioners nor the respondents have adduced any evidence. The learned Principal District Judge, Theni, upon considering the pleadings of both the parties and on hearing the arguments of both the sides, passed the impugned order, dated 10.04.2024, dismissing the petition. Aggrieved by the said order of dismissal, the petitioners have filed the present Civil Miscellaneous Appeal.

8. The learned counsel appearing for the appellants/petitioners would submit that Order 33 Rule 1 C.P.C. has been enacted to enable poor litigants to seek justice without payment of court fees and that the Principal District Court, without considering the purpose behind the enactment of such a provision, has proceeded with mechanically and dismissed the petition; that the District Collector, who is the 19^th respondent filed only formal counter statement and the same would reveal that the petitioners are not owning any immovable property; that the other respondents have also not raised any serious objections disputing the case of the petitioners and that there