A. Duraisamy vs Muthuraja and Others

S. Jagadeesan, J.—The petitioner has filed this petition, seeking permission to prefer an appeal against the decree and judgment dated

29.4.1994 in O.S. No. 496 of 1984 on the file of Sub-Court, Madurai, as an indigent person.

The petitioner''s case is that the respondents 1 to 4 herein filed the said suit O.S. No. 496 of 1984 for declaration of their title to the suit

property and for consequential injunction against the fifth respondent and the petitioner herein got himself impleaded in the said suit. The

petitioner''s case is that the suit property is a poramboke land belonging to Iyanar temple. Since the suit had been decreed, now he wants to file an

appeal. The Court fee comes to Rs. 3,926 and sine he is a man of no means, he wants to prefer an appeal as an indigent person.

The second respondent herein filed counter on behalf of all the respondents. In the counter the respondents 1 to 4 contended that the

petitioner''s case is that the suit property is a poramboke land and as such he cannot be said to be an aggrieved person. It at all, only the State

Government, who is the fifth respondent herein will be the aggrieved person. Hence if the petitioner wants to challenge the decree, he has to pay

the court-fee. Further it is contended that the petitioner filed the suit against the first respondent herein and four others. In O.P. No. 105 of 1983

he sought for permission to file the said suit as an indigent person and the same was rejected. The said order was confirmed in C.M.A.No. 249 of

1984 by this Court and in L.P.A. No. 82 of 1986. As the petitioner has suppressed these facts, the petitioner is not entitled for the relief asked

for.

The petitioner filed a detailed reply contending that the respondents 1 to 4 claimed title to the suit property, as they have purchased the same

from M/s. Rajendran and two others. The said Rajendran, one of the vendors of the plaintiff, filed O.S. No. 211 of 1972 against the other two

vendors as well as against one Chinnammal. In the plaint filed in the said suit, they have admitted that the suit property is a poramboke land and

claimed only possessory right. The petitioner is the hereditary poosari of the Iyanar temple and he was not impleaded as a party, even tough the

disputed property is in possession and enjoyment of the Iyanar temple.

The said suit was dismissed, against which Rajendran filed an appeal in A.S.No. 6 of 1976 on the file of District Court, Madurai, which was

also dismissed. Later on S.A. No. 1433 of 1978 was filed and the same was withdrawn with liberty to file a fresh suit. As the finding with regard

to the nature of the property in the earlier suit filed by the predecessor of the respondents 1 to 4 is final, it is not open to the respondents 1 to 4

now to contend the suit property belongs to them absolutely. Hence the petitioner should be permitted to filed an appeal as an indigent person.

The Counsel for the petitioner contended that the respondents 1 to 4 have not stated anything with regard to the means of the petitioner as on

date. The only objection by the respondents is that the petitioner has no right to file the appeal, as the suit property had been declared to be that of

the respondents. Further, in the earlier proceedings in 1983 the petitioner''s request to file the suit as an indigent person was dismissed. Hence he

should not be permitted to file the appeal as an indigent person.

The Counsel for the respondents contended that since the petitioner has no right in the present cause of action, he cannot be permitted to file an

appeal as an indigent person. The Counsel for the respondents also draws my attention to the provisions of Order 33, Rule 1 and contends that

since the earlier request of the petitioner was rejected, he cannot be permitted to file the appeal as an indigent person.

I have carefully considered the contentions of both the Counsel. The respondents oppose the petition only on two grounds. The first ground is

the title has been declared in favour of respondents 1 to 4 and since the petitioner does not claim titled to the suit property, he is not an aggrieved

person and he has no right to sue.

The other ground is that in the earlier proceedings in 1983 he had been refused permission to sue as an indigent person and that fact had not

been disclosed in the affidavit. Order 33, Rule 15 will be a bar in such case.

So far as the first objection is concerned, it could be seen that the respondents 1 to 4 had filed the suit for declaration of their title to the suit

property and for consequential injunction. The suit has been decreed. So far as the petitioner is concerned, he claims possession of the suit

property as hereditary poosari of Iyanar temple. So far as the injunction relief is concerned, the petitioner can be said to be an aggrieved person.

Even the title of the respondents 1 to 4 may be upheld; but still the right of possession of the petitioner is concerned, the petitioner is an aggrieved

person and he can file an appeal. Incidentally if he wants to challenge the title, it is also open to him to do so; especially in the presence of the real

owner. Hence it cannot be said that the petitioner is not an aggrieved person and no right exists to sue.

So far as the second objection is concerned, respondents 1 to 4 had stated that in O.P.No. 105 of 1983 the petitioner''s request to sue as an

indigent person was rejected. As the petitioner suppressed this fact, the petitioner cannot be permitted to sue as an indigent person. Necessarily it

has to be considered as to how far Order 33, Rule 15 prohibits the request of the petitioner. Order 33, Rule 15 reads as follows:

15 Refusal to allow applicant to sue as an indigent person to bar subsequent application of like nature- An order refusing to allow the applicant to

sue as an indigent person shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant

shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that the plaint shall be rejected if he does not pay, either

at the time of the institution of the suit or within such time thereafter as the court may allow the cost (if any) incurred by the State Government and

by the opposite party in apposing his application for leave to sue as an indigent person.

This provision makes it clear that the order of refusal to allow the applicant to sue as an indigent person shall be a bar to any subsequent

application of the like nature by him in respect of the same right to sue.

The petitioner in his reply has stated that in fact in the earlier proceedings the Collector has given a certificate that the petitioner is an indigent

person, but the said certificate was not produced before the court and on that ground the said O.P. was dismissed. However the respondents have

not produced any materials to show that the petitioner has filed the present suit in respect of the same issue involved in earlier suit. Further, it may

be considered that the earlier proceedings had been initiated in 1983, wherein the petitioner was refused permission to sue as an indigent person.

Now the present suit has been filed after nearly 12 years and so far as the means of the petitioner is concerned, the respondents have not stated

anything. Hence the averment of the petitioner that he does not possess any means to raise the funds to pay the court-fees has to be accepted.

The respondents referred to a judgment reported in Balasubramaniam v. Purushottam, AIR 1978 Mad. 28 wherein it has been held that the

earlier refusal in a petition under Order 33, will form res judicata. There is no dispute with regard to the principle. But in the absence of any

material to show that the petitioner is now preferring the appeal in respect of the same right which involved in O.P. No. 105 of 1983 it cannot be

said that the principle of Order 33, Rule 15 will be applicable to the present case. Hence the respondents'' objection is over-ruled.

In the result, the petition is allowed.