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Madhya Pradesh High Court · body

2004 DIGILAW 27 (MP)

Rakesh Kumar v. Bhagwati Bai

2004-01-12

K.K.LAHOTI

body2004
Judgment ( 1. ) PETITIONERS have filed this petition challenging the order dated 30-8-2003 by which the Trial Court has rejected the prayer of the petitioners for grant of adjournment to file written statement, and order dated 27-9-2003 by which it rejected the petitioners application seeking permission of the Trial Court to file written statement. ( 2. ) LEARNED Counsel for the petitioners submits that the respondent filed an application under Order 33 Rule 1 of the Code of Civil Procedure, 1908 to file suit as an indigent person. The Trial Court issued notice in respect of the indigency of the respondent. The prayer for adjournment for filing the written statement was made by the petitioners which was rejected by the Trial Court on 30-8-2003, but, subsequently, petitioners filed written statement alongwith an application to the Trial Court to take written statement on record which was also rejected. The contention of the petitioners is that the suit itself was not registered under Order 33 Rule 8 or under Order 33 Rule 11 of the Code of Civil Procedure, in the circumstances, there was no question of filing written statement in the case. Only a short reply was to be filed in respect of indigency of the respondent. In the circumstances, the Trial Court committed error in rejecting the prayer of the petitioners for filing written statement. He further submits that prayer of the respondent to file suit as an indigent person was rejected by the Trial Court. In the circumstances, petitioners are entitled to file written statement, in case respondent pays Court fee as required under Rule 11 of Order 33 of the Code of Civil Procedure. ( 3. ) LEARNED Counsel for the respondent submits that though the prayer of respondent to file suit as pauper has been rejected but against the said order, respondent has filed revision in this Court and in case revision is allowed, respondent will be permitted to file suit as pauper. In the circumstances, the Trial Court has rightly rejected the prayer of the petitioners. ( 4. ) TO appreciate the contention of learned Counsel for parties, it is necessary to consider the relevant provisions, for ready reference. Order 33 Rule 1 of the Code of Civil Procedure provides that any suit may be instituted by an indigent person. In the circumstances, the Trial Court has rightly rejected the prayer of the petitioners. ( 4. ) TO appreciate the contention of learned Counsel for parties, it is necessary to consider the relevant provisions, for ready reference. Order 33 Rule 1 of the Code of Civil Procedure provides that any suit may be instituted by an indigent person. The aforesaid suit shall be presented alongwith an application for permission to file a suit as an indigent person. The aforesaid application shall be presented under Rule 3 of Order 33, which reads as under:- "r. 3. Presentation of application.-- Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person : Provided that, where there arc more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs. " ( 5. ) RULE 4 of Order 33 provides examination of the applicant and Rule 5 of Order 33 provides rejection of the application for permission to sue as an indigent person on certain grounds. Rule 7 of Order 33 provides procedure at hearing. For ready reference, Rule 7 reads as under :- "r. 7. Procedure at hearing.-- (1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witness (if any) produced by either party, and may examine the applicant or his agent, shall make a full record of their evidence. (1-A) The examination of the witnesses under Sub-rule (1) shall be 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 Rule 5. (1-A) The examination of the witnesses under Sub-rule (1) shall be 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 Rule 5. (2) The Court shall 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 an indigent person. " In view of Sub-rule (3) of Rule 7, the Court on enquiry may either allow or refuse to allow the applicant to sue as an indigent person and if applicant is permitted to sue as an indigent person the procedure is envisaged under Rule 8 of Order 33, which reads as under :- "rule 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 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. " Rule 8 specifically provides that on allowing the application, it shall be numbered and registered and shall be deemed the plaint in the suit and shall proceed in all other respects as a suit instituted in ordinary manner and plaintiff shall not be liable to pay any Court-fee. Considering the Rule 8, it is apparent that the stage of filing of written statement will arise only when the application shall be numbered as a plaint and registered. Until and unless the application is allowed and it is numbered and registered as a plaint, the stage of filing written statement does not arise. ( 6. Considering the Rule 8, it is apparent that the stage of filing of written statement will arise only when the application shall be numbered as a plaint and registered. Until and unless the application is allowed and it is numbered and registered as a plaint, the stage of filing written statement does not arise. ( 6. ) TO appreciate the contention of the respondent, it is also necessary to consider Rule 15-A, which provides that in case Court rejects the application filed by the applicant either under Rule 5 or 7 or Rule 15 of Order 33 shall not prevent a Court, while rejecting an application under Rule 5 or refusing an application under Rule 7, from granting time to the applicant to pay the requisite Court-fee within such time as may be fixed by the Court or extended by it from time to time. To consider both the provisions, when either the application is allowed or the applicant is permitted to sue as an indigent person or the application is rejected by the Court and applicant is not permitted to sue as an indigent person, in both the cases, after decision of the application, the suit shall be deemed to be instituted either on permission under Rule 8 or on payment of Court-fee under Rule 15-A, Code of Civil Procedure, in any circumstance, the question of filing written statement does not arise before registration of the plaint or suit as envisaged hereinabove. In the circumstances, the Trial Court ought not to have closed the right of petitioners for filing written statement at the stage when the application filed by the respondent for permission to sue as an indigent person was under consideration. At that stage, only right to file reply of that application may be closed, but, in any case, the right of filing written statement can not be closed at this stage, as that stage does not arise in the present case. ( 7. ) IN the circumstances, the Court below erred in rejecting the prayer of petitioners for filing written statement and the orders passed by the Court below dated 30th August, 2003 and 27th September, 2003 are hereby quashed. ( 8. ( 7. ) IN the circumstances, the Court below erred in rejecting the prayer of petitioners for filing written statement and the orders passed by the Court below dated 30th August, 2003 and 27th September, 2003 are hereby quashed. ( 8. ) AS the respondent has not been permitted to file suit as an indigent person, in the circumstances, the Trial Court on compliance of Rule 15-A of Order 33, CPC or as per the directions issued by the Revisional Court shall take written statement on record which has already been filed by the petitioners before the Trial Court. It is also directed that the cost deposited in compliance of order dated 10-11-2003 shall be refunded to the petitioners. ( 9. ) ACCORDINGLY, this petition is allowed with no order as to costs. C. C. as per rules.