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2012 DIGILAW 348 (PNJ)

Jaspreet Kaur v. Gurdeep Kaur

2012-02-27

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Plaintiff Jaspreet Kaur minor (appellant before the lower appellate court) has filed this revision petition under Articles 226/227 of the Constitution of India assailing order dated 21.7.2010, Annexure P/1 passed by learned Additional District Judge, Kaithal thereby dismissing application moved by the petitioner for permission to file the first appeal as indigent person. 2. The plaintiff-petitioner was permitted to file suit in trial court as indigent person. The suit was decreed partly by the trial court vide judgment and decree dated 25.2.2008, Annexure P/2. Plaintiff filed first appeal before the lower appellate court and moved application Annexure P/3 for permission to file the appeal as indigent person. The said application has been dismissed by the lower appellate court vide impugned order Annexure P/1 which is under challenge in this revision petition. 3. I have heard learned counsel for the parties and perused the case file. 4. Counsel for the petitioner contended that lower appellate court has erroneously observed in the impugned order that plaintiff-petitioner had paid court fee in the trial court whereas in fact the plaintiff-petitioner was permitted to file the suit as indigent person and the trial court vide judgment and decree dated 25.2.2008 directed that court fee amount for the suit shall be recoverable by State Government from defendant no. 1 against whom the suit had been decreed. There is considerable merit in the contention of counsel for the petitioner. Lower appellate court erroneously observed that plaintiff-petitioner paid court fee in the trial court and on this basis dismissed the application for permission to file the first appeal as indigent person. The very basis of dismissing the said application is erroneous and factually incorrect. The impugned order of the lower appellate court in this regard is, thus, patently perverse, illegal and suffers from jurisdictional error because the lower appellate court failed to exercise jurisdiction which vested in it to permit the plaintiff-petitioner to file the first appeal as indigent person. 5. In view of the aforesaid, the instant revision petition is allowed. Impugned order Annexure P/1 passed by lower appellate court in so far as application of petitioner for permission to file the first appeal as indigent person has been dismissed is set aside. 5. In view of the aforesaid, the instant revision petition is allowed. Impugned order Annexure P/1 passed by lower appellate court in so far as application of petitioner for permission to file the first appeal as indigent person has been dismissed is set aside. The application Annexure P/3 moved by the petitioner in the lower appellate court is allowed and petitioner is permitted to file the first appeal as indigent person.