Dismissed

Shi D. Loganathan v. Shi D. Nagabhushanam

Karnataka HC2 Feb 2024MFA/981/2013

Case brief

AI extract

What is this about?

Appeal against dismissal of a petition to sue as an indigent person under Order 33 Rules 1 and 2 read with Section 141 CPC. The High Court upheld the Trial Court's finding that the petitioner, who owned a house in Bengaluru, resided with his sons practising as advocates there, and performed his daughter's marriage after filing the petition, was not an indigent person entitled to exemption from court fee. Appeal dismissed.

What the court decided

AI extract

Shi D. Loganathan Vs Shi D. Nagabhushanam — Civil Procedure and Limitation | Karnataka HC (2024)

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1 - NC: 2024:KHC:4673 MFA No. 981 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO. 981 OF 2013 (CPC)

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BETWEEN:

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SRI D. LOGANATHAN S/O LATE N.DORAIARAJ MUDALIAR, AGED ABOUT 58 YEARS, R/AT NO.49, RAILWAY PARALLEL ROAD, SESHADRIPURAM POST, BANGALORE-560020

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…APPELLANT

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(BY SRI.H.P.LEELADHAR, ADVOCATE)

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AND:

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SRI D. NAGABHUSHANAM S/O LATE N.DORAIRAJ MUDALIAR, Digitally signed AGED ABOUT 58 YEARS, by SHARANYA T R/AT NO.54, RAILWAY PARALLEL ROAD, Location: HIGH SESHADRIPURAM POST, COURT OF BANGALORE-560020. KARNATAKA

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SINCE DEAD BY HIS LRS

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1(a) SMT. N.VIJAYA LAKSHMI W/O B.NAGABHUSHANAM AGED: MAJOR R/AT NO.85, 3^RD MAIN 1^ST STAGE, MANJUNATHA NAGAR BENGALURU-560 010.

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2 - NC: 2024:KHC:4673 MFA No. 981 of 2013

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1(b) SMT. S.MANJULA W/O B.SURESH, AGED: MAJOR, R/AT No.85, 3^RD MAIN, 1^ST STAGE, MANJUNATHA NAGAR, BENGALURU-560010

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1(c) SRI N.SHIVAKUMAR @ THAMMA @ KUTTY S/O LATE B. NAGABHUSHANAM R/AT NO.85, 3^RD MAIN, 1^ST STAGE MANJUNATHA NAGAR BENGALURU-560 010.

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(AMENDED AS PER THE COURTS ORDER DATED 06.12.2021 AND IN RESPECT OF R1(a) AND R1(c) DISMISSED)

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SRI D.MUKESHKUMAR JAIN S/O D. DALICHAND JAIN, AGED ABOUT 41 YEARS, R/AT NO.17, 9TH CROSS, KUAMRA PARK WEST, BANGALORE-560020

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SMT. GEETHA W/O R.ARVIND KUMAR, AGED ABOUT 57 YEARS, R/AT NO.78, 3RD CROSS, BHOOPASANDRA,

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BANGALORE-560094

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SMT. SULEKHA W/O SRI K.RAJASHKHAR, AGED ABOUT 40 YEARS, R/AT NO.25, B2, 2ND MAIN GANDHINAGAR, CHENNAI-2020

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SMT KAVITHA W/O SRI DINESH,

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3 - NC: 2024:KHC:4673 MFA No. 981 of 2013

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AGED ABOUT 37 YEARS, R/AT NO.13/19, LEITH CASTEL STREET, SANTHOME SOUTH, CHENNAI-2828

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…RESPONDENTS

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(R2, R3, R-1(b) ARE SERVED VIDE ORDER DATED 24.09.2021, NOTICE TO R.4 & R5 IS HELD SUFFICIENT; VIDE ORDER DATED 16.11.2021, APPEAL AGAINST R1(a) & R1(c) STANDS DISMISSED)

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THIS MFA IS FILED U/O 43 RULE 1(n)(a) OF CPC, AGAINST THE ORDER DT.30.10.2012 PASSED IN P.MISC.NO.5/2007 ON THE FILE OF THE V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE PETITION FILED U/O 33 RULES 1 & 2 R/W SEC.141 OF CPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel for the appellant.

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2. This appeal is filed against the rejection of

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petition filed by the petitioner under Order 33 Rule 1 and 2 of R/w Section 141 of CPC in P.Misc.No.5/2007 dated 30.10.2012 wherein the Trial Court after considering both

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oral and documentary evidence comes to the conclusion

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that the petitioner has not approached the Court with

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4 - NC: 2024:KHC:4673 MFA No. 981 of 2013

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clean hands. He did not discloses anything about his residence and address is also mentioned in the cause title that House No.49, railway parallel road, Seshadripuram, Bengaluru, that means he is staying in his own house. The Trial Court has also taken note of the admission elicited from the mouth of PW1 wherein he categorically admitted that he is having four children and two daughters and out of that, two sons are practicing advocates of Bangalore Bar and he is residing with his sons. The Trial Court has also taken note of that the petitioner categorically admitted that he performed the marriage of his last daughter in the year 2008-09 and the petition was filed in the year 2007. Subsequent to the filing of the petition also, he has performed the marriage of his daughter. Apart from that the petitioner categorically admitted that he is residing in his own house. Ex.P1 and Ex.P2 are the residential and income certificates issued by the Tahasildar, Bangalore North Taluk to the petitioner. The Trial Court having taken note of all those materials on record, comes to the conclusion that the report given by

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5 - NC: 2024:KHC:4673 MFA No. 981 of 2013

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the government pleader clearly discloses and conclusively establishes that the petitioner is not an indigent person. He is not entitled for the relief as sought. The respondents have also adduced their evidence and produced Ex.R1 to Ex.R6. The documents at Ex.P1 to Ex.P3 clearly and conclusively prove that the petitioner has substantial income to pay the Court fee. Instead of paying the Court fee, he has approached the Court with an intention to get the favourable order and not approached the Court with clean hands. Hence, the Trial Court comes to the conclusion that the petitioner does not come in the purview of the Order 33 Rule 1 and 2 of amended Code of Civil Procedure.

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The counsel appearing for the appellant would

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submits that the appellant is not having any income and his two sons who are enrolled as Advocates are not practicing. The approach of the Trial Court is erraneous in dismissing the petition filed under Order 33 Rule 1 and 2 of CPC. The practicing of Advocate profession would not

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6 - NC: 2024:KHC:4673 MFA No. 981 of 2013

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amounts that though the sons are practicing as Advocate would not come to hold that the appellant is capable of paying the Court fee. Other aspect that reasons given by the Trial Court that the appellant admitted that he is residing in his own house and owning a house would not amounts to having liquidated amount for the purpose of payment of Court fee.

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Having considered the submission of the appellant’s counsel and also the grounds urged in the appeal, admittedly he is having own house at Sheshadripuram and no documents are placed before the Trial Court and only in the cross-examination, he admitted the same. Even he has not relied upon the document with regard to his property is concerned. When he is owning the property in the Sheshadripuram, Bengaluru that is house No.49, railway parallel road, Seshadripuram, Bengaluru, apart from that the petitioner is residing along with his sons who are qualified Advocates practicing in Bengaluru. The Trial Court has also taken note of after

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7 - NC: 2024:KHC:4673 MFA No. 981 of 2013

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filing of the petition in the year 2007, he has performed the marriage of his last daughter in the year 2008-09. When he is capable to perform the marriage of his daughter after filing of the petition in the year 2007 and even his sons are also well educated and question of invoking Order 33 Rule 1 and 2 does not arise. The Trial Court has not committed any error in dismissing the petition in coming to the conclusion that the petitioner is not an indigent person. Hence, I do not find any force in the contention of appellant’s counsel in reversing the finding of the Trial Court.

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In view of the discussions made above, I pass

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the following:

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ORDER

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The Miscellaneous First Appeal is dismissed.

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Sd/JUDGE

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RHS List No.: 1 Sl No.: 44

Shi D. Loganathan v. Shi D. Nagabhushanam

Case brief

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What the court decided

Shi D. Loganathan v. Shi D. Nagabhushanam

Case brief

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