C.R.P(MD)No.1445 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 23.06.2023

CORAM

THE HON'BLE MR.JUSTICE C.SARAVANAN

C.R.P(MD)No.1445 of 2023

and

C.M.P(MD)No.7225 of 2023

Raja

...Petitioner/1st Respondent/

1st Defendant

Vs.

1.Shanthi

...1st Respondent/Petitioner/

Plaintiff

2.The State represented by

The District Collector,

The District Collector's Office,

Thanjavur.

...2nd Respondent/

2nd Respondent/

2nd Defendant

PRAYER: Civil Revision Petition is filed under Section 115 of C.P.C.,

to pass an order to set aside the fair and decreetal order dated 15.02.2023

passed in Pauper O.P.No.82 of 2019 in O.S.No.41 of 2023 pending on

the file of the learned Principal District Judge, Thanjavur.

For Petitioner

: Mr.R.Venkatesan

M/s.Right Law Associates

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C.R.P(MD)No.1445 of 2023

ORDER

The present Civil Revision Petition has been filed against the fair

and decreetal order dated 15.02.2023 passed in Pauper O.P.No.82 of

2019 in O.S.No.41 of 2023 pending on the file of the learned Principal

District Judge, Thanjavur.

2. The petitioner is the first defendant in O.S.No.41 of 2023. In the

said suit, the first respondent/plaintiff had filed an application under

Order 33 Rule 1 of C.P.C. to declare herself pauper and to prosecute the

proceedings before the Court. The Court has allowed the application with

the following observations:

"13. From the evidence of PW1, it is seen that she

has no income through any source except the petition

mentioned property and hence, she is unable to pay a sum

of Rs.1,92,000/- towards Court fee for filing a suit as

against the first respondent. Even though RW stated in his

evidence that the petitioner is having 50 sovereigns of

jewels and movable properties of three two wheelers, but

in order to prove the same 1 respondent has not produced

any of the document except Ex.R1 which is the invitation

of ear boring ceremony conducted by the elder son of the

petitioner for his son. Further, during the course of cross

examination of RW1, he admitted that except the details of

gas subscription amount, to other transactions mentioned

in the ExP8 and ExP9 pass books stands in the name of

the petitioner.

14) During cross examination of PW1 by the 2

respondent, she has admitted that she is residing in a

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C.R.P(MD)No.1445 of 2023

petition mentioned house, which belongs to her and she

has no other source of income. Except that house, no other

source is available for gain or yield income. Now, whether

the alleged property using by the petitioner berein as

house, can be considered as a enough means to pay the

court fee for filing a suit for declaration.

15) It is well settled law that capacity to raise funds

could only form of receivable assets which a person could

in the normal circumstance convert into cash and utilize

for the litigation without detriment to her normal

existence. Hence, no person cannot be expected to sell the

property using as only dwelling place to pay the court fee.

16) In this regard, it is whwhile to mention the

observation made by our Ha'ble Supreme Court in State of

Haryana vs Darshana Devi in AIR 1979 SCC 455

wherein, our Hon'ble Supreme Court has held that

"In a criminal case, the benefit of doubt

goes to the accused and in a civil case, the

benefit of doubt regarding payment of court fee

being the physical statue should go to the

litigant, thereby allowing to pay court fee comes

as due arise regarding the court fee."

17) Furthermore, the petitioner have only a house

which is not at all disputed by the respondents. Since that

house does not come under the category of income

yielding, it cannot be considered as source of income and

sufficient means to pay the court fee. In other words, mere

possession of the house, in my considered view, it is not

sufficient to