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Himachal Pradesh High Court · body

2002 DIGILAW 226 (HP)

VIDHYA CHAND v. SHAIMU DEVI

2002-08-19

A.K.GOEL

body2002
JUDGMENT Arun Kumar Goel, Judge.—This revision is directed against the order passed by learned District Judge, Kinnaur Division at Rampur, dated 19-3-2002, whereby he has allowed the application of the respondent-wife to sue as an indigent person under Order XXXIII, Rules 1 and 2/Section 151 of the Code of Civil Procedure, 1908. 2. Record of the trial Court which was summoned shows that an application under Order XXXIII, Rule 2 of the Code of Civil Procedure, 1908 was filed before the District Judge, Kinnaur Division at Rampur on 13-9-2001. Its presentation reads as under:— "13.9.2001 : Presented by Mr. Diwan Singh, Advocate, counsel for the plaintiff. Office to check and report. Put up on 25-9-2001. Sd/- District Judge, Kinnaur Divn. Rampur (H.P.)." Following order was passed on 25-9-2001:— "25-9-2001: Present:—Shri Diwan Singh, Advocate, counsel for the plaintiff. Register. Issue notice to the defendant for 1-11-2001. Sd/- District Judge, Kinnaur Divn. Rampur (H.P.)" 3. Defendant (petitioner herein) appeared in this case and filed his reply-cum-objections to the application under Order XXXIII, Rule 2 of the Code of Civil Procedure, 1908. Numerous pleas were raised by him. According to him, the application as filed was not competent because mandatory provisions of Rules 2 and 3 of Order XXXIII of the Code of Civil Procedure, 1908 had not been complied with. In addition to this, it was also pointed out that the respondent-wife is possessed of adequate property and thus is able to affix the court-fee. Trial Court framed the following issues on 6-11-2001:— 1. Whether the petitioner is entitled to sue as indigent person? OPP 2. Relief. 4. Trial Court also called for the report from the Collector, Rampur. After recording evidence, District Judge allowed the application. It is most unfortunate that the learned Judge while dealing with this case did not care to apply his mind in a judicious manner, nor did he care to look to the letter of law. This has resulted in failure of Justice and passing of the impugned order. 5. Elaborate and specific procedure is prescribed while entertaining a petition under Order XXXIII of the Code of Civil Procedure, 1908. This has resulted in failure of Justice and passing of the impugned order. 5. Elaborate and specific procedure is prescribed while entertaining a petition under Order XXXIII of the Code of Civil Procedure, 1908. Holding of inquiry before issuing notice to the opposite side as well as to the Government Pleader under Order XXXIII, Rule 6 of the Code of Civil Procedure, 1908, is the first step to be taken by Court, after the petition is presented by the petitioner in person unless exempted. Record shows that no notice was issued to the Government Pleader. Only report was called for from the Collector, Sub-Division, Rampur which is there on the record. 6. Perusal of the trial Court record further shows that the petition under Order XXXIII of the Code of Civil Procedure, 1908 was not presented by the respondent-wife in person nor any exemption was sought for by her. Similarly, the contents of the application do not meet even remotely the requirement of Order XXXIII, Rule 2 of the Code of Civil Procedure, 1908, neither there was any inquiry got done by the trial Court. 7. In these circumstances, what emerges is that without resorting to the provisions of Order XXXIII, Rules 1 to 4 of the Code of Civil Procedure, 1908, trial Court passed the impugned order. Notice should have been issued to the petitioner (respondent before the trial Court) as well as to the Government Pleader. In these circumstances, allowing of the application and permitting the respondent-wife to sue as an indigent person under Order XXXIII, Rules 1 and 2/Section 151 of the Code of Civil Procedure, 1908 is not justified and the impugned order cannot be sustained by any stretch of imagination. 8. I am further constrained to observe that the learned District Judge below after allowing the application has entertained fresh suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 and has registered it as Civil Suit No.7-R/1 of 2001, whereas petition under Order XXXIII of the Code of Civil Procedure, 1908 was registered as 129-R/6 of 2001. Fact remains that in the event of the petition under Order XXXIII being allowed, the same has to be registered as a suit and in case it is rejected then time is to be allowed to the petitioner to affix the court-fee on it. 9. Fact remains that in the event of the petition under Order XXXIII being allowed, the same has to be registered as a suit and in case it is rejected then time is to be allowed to the petitioner to affix the court-fee on it. 9. Faced with this situation, learned counsel for the respondent-wife fairly stated that since the mandatory provisions having not been observed by the trial Court, neither the presentation of the application under Order XXXIII was there nor further proceedings were taken by the trial Court, therefore, the impugned order cannot be sustained in view of the law laid down in Janak Raj v. Manju Bala and others, Latest HLJ 2001 (HP) 225 and Shiv Lal and others v. Nimmi, 1998 (2) SLJ1279, as well as in two decisions of Punjab and Haryana High Court reported as Birender Kumar v. Mohinder Singh and others, (1985-2) Punjab Law Reporter 612 and Pirthipal Singh v. Smt. Stir jit Kaur alias Saranjit Kaur, 1977 PLR 32. He further stated that petition under Order XXXIII, Rule 2 may be ordered to be withdrawn because of the aforesaid defects since it is bound to fail. He, however, hastened to add that liberty may be reserved to the respondent-wife to approach the Court again on the same cause of action by filing an appropriate petition in terms of Order XXXIII of the Code of Civil Procedure, 1908 with a direction to the trial Court to deal with the matter in accordance with law thereafter. 10. While allowing the respondent-wife to seek leave of the Court to withdraw the petition under Order XXXIII, Rule 2 of the Code of Civil Procedure, 1908 as filed before the trial Court, the impugned order passed by learned District Judge, Kinnaur Division at Rampur on 19-3-2002, is hereby quashed and set-aside. Liberty is reserved to her to file a fresh petition on the same cause of action as required under law. In such a situation, trial Court is directed to keep in view the letter of law and then proceed further. 11. Before parting with this case, I am constrained to observe that there was no occasion for the trial Court to have entertained a separate plaint after having passed the order on 19-3-2002. In such a situation, trial Court is directed to keep in view the letter of law and then proceed further. 11. Before parting with this case, I am constrained to observe that there was no occasion for the trial Court to have entertained a separate plaint after having passed the order on 19-3-2002. Because as per law, thereafter it is the petition under Order XXXIII of the Code of Civil Procedure, 1908 itself that has to be treated as a plaint. In these circumstances, Civil Suit No. 7-R/l of 2001 does not survive and is ordered to be consigned to the record. CMP No. 174 of 2002: 12. This application does not survive in view of the orders passed in the main matter. Parties are left to bear their own costs. -