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1997 DIGILAW 556 (PAT)

Rabinder Singh v. M. Maheshwar Rao

1997-08-06

M.Y.EQBAL

body1997
Judgment M.Y.Eqbal, J. 1. These two civil revision applications have been filed by the defendants of Title Suit No. 5 of 1996 challenging the order dated 18.2.1997 passed by the Sub Judge-I, at Jamshedpur in Misc. Case No. 2 of 1996. By the said impugned order, the learned court below refused to recall its order dated 23.1.1996 passed in title Suit No. 5 of 1996 allowing the plaintiff Opposite- Parties to sue the defendants as indigent persons. 2. The plaintiff Opposite-Parties filed the aforementioned title suit No. 5 of 1996 in the court of the Sub-Judge, Jamshedpur for the relief, inter alia, that it be declared that the defendant No. 2 has no right to alienate the suit property to a person other than the heirs of M.V. Ramaiya and for a declaration that the alienation, if any, made by the plaintiff is illegal and is liable to be set aside. The plaintiff also claimed a decree for permanent injunction restraining the defendants from making any construction in the Schedule B property. The plaintiff also filed an application under Order XXXI, (Note, it should be Order XXXIII--Editor), Rule 1, C.P.C and prayed that he may be allowed to file the suit as an indigent person and to admit the suit without paying any court fee. The learned court below after going through the aforesaid application passed an order on 23.1.1996 declaring the plaintiff as a pauper and indigent person having no means to pay the court fee and the suit was admitted and summons were issued to the defendant petitioners, After receipt of the summons, the defendants appeared in the suit and filed an application under Section XXXIII, (Note, it should be Order XXXIII--Editor), Rule 9 of the Code of Civil Procedure praying therein that the order dated 23.1.1996 may be recalled or set aside. The stand taken by the petitioners in the said application are that the learned court below passed the order allowing the plaintiff to sue as an indigent person without serving any notice to the defendants or to the Government Pleader, which was a mandatory requirement of law. The stand taken by the petitioners in the said application are that the learned court below passed the order allowing the plaintiff to sue as an indigent person without serving any notice to the defendants or to the Government Pleader, which was a mandatory requirement of law. The defendants further stated that the plaintiff has sufficient means to pay the court fee, inasmuch as the plaintiff is a television mechanic and has a shop at Sakchi Bazar, Jamshedpur, which he sold in December, 1995 and acquired two more such shops in Sakchi Bazar, which also, he disposed of in the first week of January, 1996 and has started repairing television sets and other electrical goods in the newly built up room on the top floor of the said building; thereby he earns more than Rs. 5000.00 per month. It was further stated that the plaintiff has got costly TV set, ceiling fans and other costly furniture and he has also a scooter worth Rs. 50,000.00 which the plaintiff has suppressed in the application under Order XXXIII, Rule 1 of the Code of Civil Procedure. The said application filed by the defendant petitioner was registered as Misc. Case No. 2 of 1996 and the plaintiff opposite-party filed a rejoinder to the aforesaid petition questioning the maintainability of the said application and denying the facts stated therein. The learned court below by the impugned order dated 18.2.1997 rejected the said application filed by the defendants. The learned court below held that the order dated 23.1.1996 was passed by his predecessor-in-office after recording the statement of the plaintiff and on perusal of the records of the case. The learned court below, therefore, rejected the application holding that the defendants ought to have moved the revisional court if they were aggrieved by order dated 23.1.1996. 3. I have heard Mrs. Jaya Roy, counsel for the petitioner and Mr. P.C. Roy, counsel for the Opposite-Parties. The learned Counsel for the petitioner has assailed the impugned order as being illegal and wholly without jurisdiction. The learned court submitted that admittedly, before passing the order declaring the plaintiff as an indigent person, no notice whatsoever was given to the defendants or to the Govt. Pleader, which was a mandatory requirement of law. The learned Counsel for the petitioner has assailed the impugned order as being illegal and wholly without jurisdiction. The learned court submitted that admittedly, before passing the order declaring the plaintiff as an indigent person, no notice whatsoever was given to the defendants or to the Govt. Pleader, which was a mandatory requirement of law. The learned Counsel further submitted that the learned court below misdirected itself in law in holding that the application for recalling the order was not maintainable and the petitioners should have moved the revisional court. On the other hand, Mr. P.C. Roy, learned Counsel for the plaintiff Opposite-Parties in both the cases, submitted that this Court should not interfere with the order in exercise of revisional jurisdiction, inasmuch as by the said order, the defendants have not suffered any loss, or irreparable injury and there is no occasion of failure of justice. The learned Counsel relied on the decision in the case of JEL Church V/s. Samuel Santhi Kumar -- and a Bench decision of this Court in the case of 1996(2) PLJR 547. 4. Before appreciating the rival contentions of the parties, it would be useful to look into the relevant provisions of the Code of Civil Procedure. Order XXXIII lays down the provision for filing suits by indigent person. Rule 1 says that an indigent person may institute a suit without paying court fee and indigent person has been defined in the said rule, Rule 2 of Order XXXIII prescribes mode of filing an application for permission to sue an indigent person. Rule 4 provides that when such an application is presented in the proper forum, then the court will examine the applicants assertion regarding the merit of the claim. 5. Rule 6 of Order XXXIII provides that if the court sees- no reason to reject the application, the it shall issue notice to the opposite-party and the Govt. Pleader for the purpose of deciding the claim of the plaintiff that he is an indigent person. For better appreciation, Order XXXIII, Rule 6 is quoted herein below: 6. 5. Rule 6 of Order XXXIII provides that if the court sees- no reason to reject the application, the it shall issue notice to the opposite-party and the Govt. Pleader for the purpose of deciding the claim of the plaintiff that he is an indigent person. For better appreciation, Order XXXIII, Rule 6 is quoted herein below: 6. Notice of day for receiving evidence of applicants indigency:- Where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day (of which at least ten days clear notice shall be given to the opposite-party and the Government Pleader) for receiving such evidence as the application may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof. 6 Rule 7 of the Order XXXIII provides that on the date fixed by the Court, the witness shall be examined, so produced by the parties and after recording the evidence of both the parties, the court shall hear arguments and then pass a final order, either allowing or refusing to allow the application to sue as an indigent person. 7. Rule 9 of Order XXXIII empowers the court to withdraw the permission granted to the plaintiff to sue as an indigent person on the application of the defendant, pr of a Government Pleader, if the court is satisfied that the applicant has sufficient means, which may not enable the applicant to continue the suit as an indigent person. 8. From bare perusal of the aforementioned provisions of Order XXXIII of the Code of Civil Procedure, it is manifest that at any stage of the suit, the defendant or a Government Pleader may file an application and pray the court to withdraw the order of permission given to the applicant to sue as an indigent person. It is further clear that the court before finally allowing the application of the applicant to sue as an indigent person, shall give notice to the defendant and also the Government Pleader and shall give reasonable opportunity of hearing, the court shall further give reasons while holding that the applicant has not sufficient means to pay the court fee. It is further clear that the court before finally allowing the application of the applicant to sue as an indigent person, shall give notice to the defendant and also the Government Pleader and shall give reasonable opportunity of hearing, the court shall further give reasons while holding that the applicant has not sufficient means to pay the court fee. From Rule 9 of the Order XXXIII, it is also manifest that at any stage of the suit, the defendant or a Government Pleader may file an application and pray the court to withdraw the order of permission given to the applicant to sue as an indigent person. 9. Coming to the impugned order passed by the learned court below, it appears that the learned court below has completely lost sight of the aforesaid provisions of law and rejected the application of the defendant petitioners on extraneous consideration. Admittedly, the order dated 23.1.96 was passed by the learned court below granted permission to the plaintiff to sue as an indigent person, without giving notice to the defendant or the government pleader and without giving any opportunity of hearing. The said order, therefore, in my opinion was, on the face of it, bad in law. The learned court below mis-directed itself in law in holding that once the permission is granted to the plaintiff to sue as an indigent person, the only remedy available to the defendant is to approach the revisional court. 10. Mr. P.C. Roy, learned Counsel, put heavy reliance on the decision of the Orissa High Court and also this Court in the above referred decisions. In the case of JEL Church V/s. S.S. Kumar (supra), the facts of the case was that the application filed by the plaintiff for permission to file a suit as an indigent person was dismissed by the learned trial court, but allowed by the appellate court and the permission was granted to pursue the suit as an indigent person. That order was passed by the trial court and the appellate court after giving proper notice and after hearing the defendants. After some time, the defendants filed an application under Order XXXIII, Rule 9 of the Code of Civil Procedure praying for withdrawal of such permission on the ground, inter alia, that during the pendency of the suit, the plaintiff has come to possess sufficient means to pay requisite court fee. After some time, the defendants filed an application under Order XXXIII, Rule 9 of the Code of Civil Procedure praying for withdrawal of such permission on the ground, inter alia, that during the pendency of the suit, the plaintiff has come to possess sufficient means to pay requisite court fee. That application of the defendant was disallowed by the trial court. The defendants then moved the High Court by filing revision application. In the facts of that case, it was held that the matter of pauperism co-related with payment of court fee and the State Government is principally concerned with the payment of the court fee. It was further held that the defendant has no locus standi to object to the permission contemplated under Order XXXIII, Rule 1 of the Code of Civil Procedure. 11. In the case of Satyadeo Rai (supra), the defendant has challenged the order passed by the learned Sub-Judge rejecting the prayer of the defendant for giving direction to the plaintiff to pay ad valorem court fee. The defendant challenged the order by filing civil revision application. In that context, this Court held that the defendant has no locus standi to challenge the said order and the revision application is not maintainable. The decision aforesaid, in my opinion, does not apply in the facts and circumstances of the present case If submission of Mr. P.C. Roy, counsel appearing on behalf of the defendant is accepted, then the provision of Order XXXIII, Rule 6 and Rule 9 becomes redundant and in no case, the defendant would be able to challenge the order of the trial court, even if the order is passed without following the mandatory requirement of Order XXXIII, Rule 6, as aforesaid. As noticed above, the initial order passed by the learned court below allowing the plaintiff to sue as an indigent person was not in accordance with law. Inasmuch, as the said order was passed ex parte without following the procedure provided under Rule 6 of Order XXXIII of the Code of Civil Procedure. In my opinion, therefore, if the court passes an order allowing the plaintiff to sue as an indigent person without following the requirements of Rules 2 to 6 of Order XXXIII, then the defendants shall have right to challenge the order and this Court can interfere with the said order in exercise of revisional jurisdiction. 12. In my opinion, therefore, if the court passes an order allowing the plaintiff to sue as an indigent person without following the requirements of Rules 2 to 6 of Order XXXIII, then the defendants shall have right to challenge the order and this Court can interfere with the said order in exercise of revisional jurisdiction. 12. For these reasons, the civil revision applications are allowed and the impugned order is set aside and the order dated 23.1.1996 passed by the learned court below is recalled. The learned court below is directed to hear the application filed by the plaintiff opposite-party under Order XXXIII, Rule 1 of the Code of Civil Procedure and pass an order afresh in accordance with law after giving opportunity of hearing to the defendant-petitioners. No order as to costs.