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2003 DIGILAW 358 (JK)

Mudit Jain v. Divya Jain

2003-11-18

PERMOD KOHLI

body2003
This revision is directed against order dated 27.8.2003 passed by the learned District Judge, Jammu in a petition for forma pauperis filed by respondents. After preliminary enquiry and considering the petitioners( respondents herein) as indigent persons, a direction has been issued to the petitioner herein (defendant in the suit) to file written statement. In the same order, kept the issue of final declaration of respondents being indigent persons alive to be decided after framing the issue in this regard in the suit. 2. Brief resume of facts as emerge from the petition are, that a petition under Order 33 Code of Civil Procedure seeking permission to sue as indigent persons, was presented before the District Judge, Jammu by the respondents (plaintiffs) on 1.1.2003. Learned District Judge, Jammu directed his Section Officer to submit report. Pursuant to the aforesaid order, report was submitted by the Section Officer, which was considered by the court whereupon order dated 20.1.2003 came to be passed, which is in the following terms : " I have perused the report of the Section Officer and have heard the advocate of the applicants. From the report of the S.O. submitted to the court and the arguments, I have no hesitation to hold that applicants are not possessed of substantial means enabling them to pay the fee prescribed under rules. As such, they are declared indigent persons. Let the suit be entered in the proper register and numbered whereafter the summons be issued to the defendants alongwith the plaint through District Judge Tees Hazari Courts Delhi and the summons issued be delivered to the Advocate of the plaintiffs for service of the defendants through District Judge Tees Hazari Courts, Delhi Simultaneously, the defendants be also summoned through registered AD accompanied by the copy of the plaint after submitting the Registered covers and AD in the court." 3. After passing the aforesaid order, petitioner was put to notice, who preferred an application dated 12.4.2003 seeking permission to lead evidence to disprove the claim of the respondents of being indigent persons. It is this application, which culminated in passing of impugned order. 4. I have heard Mr. Sakal Bhushan, Advocate for petitioner and Mr. K.S. Johal, Advocate for caveators/respondents. 5. It is this application, which culminated in passing of impugned order. 4. I have heard Mr. Sakal Bhushan, Advocate for petitioner and Mr. K.S. Johal, Advocate for caveators/respondents. 5. The validity of the order impugned has been called in question on the ground that the same has been passed in disregard to the procedure prescribed in Order 33 of the Code of Civil Procedure. Mr. K.S. Johal has attempted to defend the order on the plea that no prejudice has been caused to the petitioner by passing the impugned order, as the question has been kept alive by the trial court to be decided by framing an issue on the subject. 6. I am of the considered opinion that the order impugned which has been assailed in the present petition as also order dated 20.1.2003 passed by the District Judge, Jammu, are not sustainable in law and are required to be set aside. Though only order dated 27.8.2003 has been challenged by taking suo moto notice of the order dated 20.1.2003, I exercise revisional jurisdiction in respect to said order also. Copy of the order dated 20.1.2003 has not been placed on record, but the same has been reproduced in para-3 of the revision petition. The contents whereof have not been disputed by the parties. A person who claims to be indigent, can institute a petition in the competent court claiming to be an indigent person, as defined under Order 33 Rule 1 (Explanation-1). On receipt of the application, the court is required to hold preliminary enquiry into his means. Such an enquiry can be entrusted to Chief Ministerial Officer of the court or the court may itself make enquiry. Procedure for the same, is prescribed under Rule 1(a) of Order 33, which is quoted hereunder: " (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit." 7. After the aforesaid preliminary enquiry, if court finds any reason for rejection of the application as indicated in Rule 5 thereof, it shall order accordingly. After the aforesaid preliminary enquiry, if court finds any reason for rejection of the application as indicated in Rule 5 thereof, it shall order accordingly. In the event, the court is of the opinion that application is not required to be rejected and has to be proceeded with, then the procedure prescribed under Rules 6, 7 and 8 is to be followed. For the purpose of appreciating the contention raised by the parties, aforesaid rules are reproduced hereunder: " 6. Notice of day for receiving evidence of applicants pauperism: 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 applicant may adduce in proof of his pauperism for hearing any evidence which may be adduced in disproof thereof. 7. Procedure at hearing (1) On the day so fixed or as soon thereafter as may be convenient, the court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his, and shall make (a full record of their evidence.) (1-A) The examination of the witness under sub-rule (1) shall confined to the matters specified in clause (b), clause(c) and clause(e) of rule 5 but the examination of the applicant or his agent may relate to any of the matters specified in rue 5) (2) The court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence ( if any) taken by the court ( under rule 6 or under this rule) the applicant is or is not subject to any of the prohibitions specified in rule 5. (3) The court shall then either allow or refuse to allow the applicant to sue( as indigent person). 8. (3) The court shall then either allow or refuse to allow the applicant to sue( as indigent person). 8. Procedure if application admitted: Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court fee ( or fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit. It shall, however, be within the competence of the court in case of the extreme poverty of the plaintiff to exempt him from payment of process fees." 8. From the examination of the aforesaid rules, it transpires that if the court finds no reason for rejection of the application in terms of Rule-5, a notice of this application shall be given to the opposite party and the government pleader for receiving evidence of the parties in proof or disproof of pauperism of the applicant. On receiving evidence of the parties and examining them, the court shall afford an opportunity of being heard to the parties on the question of pauperism. It is only after the evidence of both the parties is recorded and parties are heard, the court shall either allow or refuse the applicant to sue as an indigent person. If on consideration of the evidence and hearing the parties, the court allow the application, the same is to be numbered and registered as a plaint in the suit. The court shall then proceed with the trial. This is the clear mandate of law, as is apparent from the conjoint reading of rules 6 to 8. 9. In the instant case, merely on the report of the Section Officer of the court, the court declared the respondents( plaintiffs ) as indigent persons and directed the petition to be registered and numbered as suit vide order dated 20.1.2003. Even when present petitioner approached the court for rectification of order and compliance of mandate of law, the trial court declined the application and proceeded to try the suit, though it has been observed in the impugned order that the question of pauperism shall be tried in the suit as one of the issues involved therein. Such a course is impermissible. Such a course is impermissible. First of all, the court has to finally determined the status of the plaintiffs whether he/they are indigent persons on the basis of enquiry prescribed under rules, which include evidence of both the parties and opportunity of being heard. 10. Admittedly, respondents were declared indigent persons without recording evidence of the applicant in proof of pauperism and even without allowing the petitioner to lead evidence in disproof thereof. As a matter of fact, petitioner was not given even a notice before deciding the issue of pauperism while passing order dated 20.1.2003. Non observance of mandatory procedure prescribed under Order 33, has rendered the order dated 20.1.2003 illegal and invalid and this court rectify the same even suo moto. The court trying the petition could treat the petition for forma - pauperis as plaint and proceed ahead with the trial only after declaration is made in terms of Rule-7 and 8. Asking the other side to file written statement, obviously means that the petition for forma pauperis has been treated as plaint. This has been done in complete disregard to the procedure prescribed under Rules 6 to 8. 11. For what has been stated above, this petition is allowed. Orders dated 20.1.2003and 27.8.2003 are hereby set aside. District Judge, Jammu shall proceed to hear the parties in accordance with the procedure prescribed under Rule 6 to 8 of Order 33 CPC and pass appropriate orders. 12. Mr. Sakal Bhushan, learned counsel appearing for petitioner has tried to impress that the respondents have sufficient means to defray the court fee. He relies upon certain Fixed Deposit Receipts and entries in the bank account. I refrain from commenting upon the same, as it is a matter to be considered and decided by trial court. Before parting with this judgment, it is observed that trial court shall decide the issue of pauperism expeditiously.