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Rajasthan High Court · body

2023 DIGILAW 1107 (RAJ)

Shambhu Singh Rajpurohit v. Leena Rajpurohit

2023-05-15

REKHA BORANA

body2023
ORDER : 1. The present revision petition has been preferred against the order dated 11.07.2019 passed by the Additional District Judge, Sumerpur in Civil Misc. Case No. 12/2017 whereby the application under Order 33 of the Code of Civil Procedure as preferred by the plaintiffs respondents for suing as indigent person has been allowed. A suit for cancellation and declaration of the relinquishment deed to be void and ineffective qua their rights; partition; permanent and mandatory injunction was preferred by the respondent-applicants Nos.1 to 3 (respondent No. 3, being a minor-through his natural guardian-Mother). 2. An application under Order 33, CPC was also preferred alongwith the suit seeking permission to sue as an indigent. The said application has been allowed vide the order impugned, aggrieved against which the present revision petition has been preferred by the petitioners non-applicants. 3. Learned counsel for the petitioners submitted that the schedule of properties, as provided under Order 33, Rule 2, CPC which is a mandate, having not been filed by the applicants alongwith their application, it could not have been entertained. Learned counsel submitted that the law mandates not only for the submission of the schedule of properties belonging to the applicant but also for a preliminary enquiry as to whether a person is an indigent person. After the said preliminary enquiry, if the Court reaches to the conclusion that the applicant is not an indigent person or the application is not framed and presented in the manner prescribed by Rules 2 and 3, the Court shall reject the application. If the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall proceed for hearing on the application in terms of the procedure as prescribed under Rule 7. It is only after the notice being served to the opposite party; examining the witnesses of either party including the applicant, if required; and after hearing the parties, the Court would proceed on to either allow or refuse the application. In the present matter, the Court did not follow the above procedure as mandated by law and therefore, the order impugned deserves to be set aside. 4. Counsel submitted that even otherwise, the applicants are not indigent and do not deserve to be granted permission to sue as such. In the present matter, the Court did not follow the above procedure as mandated by law and therefore, the order impugned deserves to be set aside. 4. Counsel submitted that even otherwise, the applicants are not indigent and do not deserve to be granted permission to sue as such. In support of his submission learned counsel showed for the perusal of this Court, the order passed by the Additional District Judge, Sumerpur in the proceedings as preferred by the mother of the applicants for maintenance whereupon an order in favour of mother as well as the minor children had been passed directing the father to grant maintenance. He further submitted that the specific facts of LIC policies as well as other movable properties have been concealed by the applicants and therefore also, they do not deserve any indulgence. Moreover the applicants were neither examined by the Court nor was the non-applicant granted any opportunity to oppose the same or to prove to the contrary. Learned counsel relied upon the judgment of Karnataka High Court passed in the case of Dr. D. Hemachandra Sagar and Ors v. D. Prithviraj and Anr.; AIR 2004 Karnataka 33. In Dr. D. Hemachandra's case, the Court held as under: “11. One of the arguments presented before me by the respondents' learned Advocate is that this proceeding is hotly contested, and that the respondents have not been able to show to the Court that the plaintiffs possessed adequate source or resource. It is not the question of feasibility of the opposite party to be able to expose the true assets and financial position of the applicants because this is not requirement of the law. In cases where the defendants have evidence they can certainly produce it but it is not their duty to disprove the case of the applicants. It is very necessary to record that the scheme of the law is to the effect that two basic ingredients are predominant, the first being that it is condition precedent for the plaintiffs applicants to make a full and true disclosure of all their assets and resources. Where this is not done or where it is evident to the Court that the disclosures are untrue or unreliable or incorrect which boils down to the inference that they are half truths or totally false, the application will have to be dismissed on this ground alone. Where this is not done or where it is evident to the Court that the disclosures are untrue or unreliable or incorrect which boils down to the inference that they are half truths or totally false, the application will have to be dismissed on this ground alone. I have checked and crosschecked the evidence on record and I need to only highlight one admission by the plaintiff No. 2 who has in no unequivocal terms admitted in cross-examination that he requires an amount of Rs. 2 lakhs per month for his maintenance. It is not for the Court to dissect or question the same. Respondents' learned Advocate struggled to put forward the weak explanation that this was a misunderstanding and that the witness really meant that the plaintiffs were entitled to that figure as and by way of their share of the estate. This explanation is meaningless and it is of no consequence. I need to hold, on the basis of the evidence under this head that the plaintiffs have not fulfilled the legal requirement of making a full and true disclosure of their assets and that consequently, the finding of the trial Court which proceeds on the basis of this material is required to be set aside.” 5. Per contra, learned counsel for the respondents submitted that although the declaration/schedule of properties was not filed by the applicants but then the Court had taken up the process for obtaining enquiry reports from revenue authorities as well as from the Municipal Authorities. Both the authorities specifically reported that the applicants did not have any property in their name and therefore, the Court decided in their favour permitting them to sue as indigent. He prayed that the order impugned is totally in consonance with law. 6. Heard learned counsels for the parties and perused the material available on record. 7. Order 33, Rule 1, CPC provides as under: “Suits may be instituted by indigent persons. Subject to the following provisions, any suit may be instituted by an [indigent person]. Explanation I - A person is an indigent person: (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. Explanation I - A person is an indigent person: (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. (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit. Explanation II - Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III-Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.” Order 33, Rule 2, CPC provides as under: “Contents of application.-Every application for permission to sue as an [indigent person] shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.” Order 33, Rule 5 (a), CPC provides as under: “Rejection of application.-The Court shall reject an application for permission to sue as [an indigent person]: (a) where it is not framed and presented in the manner prescribed by rules 2 and 3.” 8. A bare perusal of the above provisions clarifies that Order 33, Rule 2, CPC provides for the schedule of the properties with the estimated value thereof to be annexed with the application. The same has to be signed and verified by the applicants. Admittedly, no such schedule has been filed by the applicants in the present matter. The schedule of any movable or immovable property as provided under Order 33, Rule 2, CPC is a mandate and non-compliance of the same calls for the rejection of the application in terms of Order 33, Rule 5 (a), CPC. Admittedly, no such schedule has been filed by the applicants in the present matter. The schedule of any movable or immovable property as provided under Order 33, Rule 2, CPC is a mandate and non-compliance of the same calls for the rejection of the application in terms of Order 33, Rule 5 (a), CPC. Order 33, Rule 5 (a), CPC specifically provides that an application for permission to sue as an indigent person shall be rejected if it is not framed and presented in the manner prescribed under Rules 2 and 3. 9. Order 33, Rule 4, CPC provides for examination of the witnesses/applicant by the Court regarding the merits of the claim and the property of the applicant. Admittedly, the same has also not been done by the Court below. The Court only called for the reports from the Tehsildar as well as the Municipal Authority. A perusal of the report as furnished by the Tehsildar makes it clear that regarding the income of the applicants, it has been reported that he is not the authority to issue any income certificate to any applicant rather it is the applicant who would file an application before the Tehsildar/Competent Authority which would be verified by two responsible persons. 10. The requirement of Order 33, CPC is not only the schedule qua the immovable property but the same also comprises of movable properties. The Court below has called for the report only qua the immovable properties and on the basis of reports as received from the Tehsildar and Municipal Authority to the effect that no property is registered in name of the applicants, concluded that they fall in the category of indigent person ignoring the fact that there was no proof available on record regarding the fact that the applicants did not have any movable property also. 11. In view of the above observations this Court is of the clear opinion that the order impugned is not in consonance with the scheme of Order 33, CPC and therefore, the same deserves to be set aside. 12. Accordingly, the revision petition is allowed. The impugned order dated 11.07.2019 is hereby set aside and the application as preferred by the applicants for suing as an indigent person is hereby rejected. 13. The stay petition as well as all the pending applications stand disposed of.