Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 735 (RAJ)

H. L. Arora v. Gurdeep Singh S/o Shri Gyan Singh

2023-03-29

SAMEER JAIN

body2023
ORDER : 1. Instant writ petition has been filed under Article 227 of the Constitution of India by the petitioner-defendant No.2, assailing the order dated 06.07.2022 passed by the learned Additional District Judge No. 9, Jaipur Metropolitan-I, Jaipur in Civil Suit No. 25/2022 (Dr. Gurdeep Singh vs. State of Rajasthan & Ors.) whereby, the application filed by respondent No.1-plaintiff under Order 33 Rule 1 of the Code of Civil Procedure was allowed. 2. Vide order dated 14.09.2022, this Court had stayed the operation of the impugned order dated 06.07.2022. Thereafter, application(s) were filed for the vacation of the said stay order as well as for the early hearing and disposal of the matter. Accordingly, as per order dated 15.02.2023, the respondent-plaintiff, who is appearing in person, was extended the proposal for availing legal aid/assistance. However, he turned down the said proposal and submitted that he is well conversed with the law to argue the matter by himself. 3. In light of the above-stated background and after having obtained the consent of both the sides, the matter was taken up for final disposal. 4. Brief facts of the case, as borne out from the instant petition, reveal that the respondent-plaintiff filed a Civil Suit No.25/2022 against the defendant-petitioner, seeking compensatory damages to the tune of Rs. 30,75,02,642/-. Furthermore, the respondent plaintiff filed an application in the said suit under Order 33 Rule 1 of the Code of Civil Procedure for availing an exemption from the payment of court fee, citing indigency and his inability to pay. Thereafter, vide impugned order dated 06.07.2022, the learned court below allowed the said application filed under Order 33 Rule 1, against which the petitioner-defendant has filed the instant writ petition. 5. It is contended by the learned counsel for the petitioner-defendant that the impugned order is bad-in-law, as the learned court below has failed to acknowledge and comply with the mandatory procedure as prescribed under Order 33 of the Code of Civil Procedure (hereinafter ‘CPC’). In this regard, it was submitted that Order 33 of the CPC prescribes the procedure for the institution of a suit by an indigent person. In this regard, it was submitted that Order 33 of the CPC prescribes the procedure for the institution of a suit by an indigent person. However, the learned trial court, while passing the impugned order, bypassed the mandatory requirements of Order 33 insofar as no due inquiry was conducted by a competent person regarding the grounds for rejection of a plaint mentioned under Rule 5 of Order 33 of the CPC. Moreover, the learned trial court below even failed to undertake the procedure set out under Rule 6, as no notice was served upon the petitioner as well as the Government Pleader, for fixing a day with regards to the presentation of evidence challenging the respondent-plaintiff’s indigency. In support of his claim, learned counsel relied upon the dictum of the Apex Court in Vijay Pratap Singh & Anr. vs. Dukh Haran Nath Singh & Anr.: 1962 Supp (2) SCR 675; Mathai M. Paikeday vs. C.K. Antony: (2011) 13 SCC 174 ; Solomon Selvaraj & Ors. vs. Indirani Bhagawan Singh & Ors.: (2023) 1 SCC 349 ; Minor Cibiraj & Anr. vs. Marimuthu & Ors.: 2004-1-L.W. 335 and submitted that the procedure prescribed under Order 33 of the CPC is mandatory in nature, as is reflected from the express usage of the word ‘shall’ in the said provision. Moreover, while placing reliance upon Mathai M. Paikedy (Supra), it was submitted that the scope of the term “sufficient means” in Order 33 Rule 1 contemplates an individual’s ability or capacity to raise money by available lawful means to pay court fee, wherein factors including a person’s employment status, financial assistance received from family members or close friends, ownership of realizable unencumbered assets etc can be taken into account for determining whether a person is possessed of sufficient means or is an indigent to pay court fee. 6. Per contra, the respondent-plaintiff, who has appeared in person, has raised a preliminary objection qua the maintainability of the instant writ petition, in light of the alternate remedy available to the petitioner-defendant under Order 33 Rule 9 of the CPC, by way of which he can approach the learned trial court for revoking the permission granted to the respondent-plaintiff to sue as an indigent person. He has further submitted that the judgments cited by the petitioner-defendant are distinguishable on account of Rule 1A of Order 33, which was incorporated into the Code by way of an amendment in 1977. It was stated that as per the said Rule, the Chief Ministerial Officer of the Court has the authority to conduct an inquiry regarding the indigency of the applicant. The said inquiry is conducted in the first instance to know if an applicant is an indigent person or not. Moreover, it is upon the discretion of the Court whether to accept the report submitted by such an officer or to make a further inquiry. Therefore, in the facts and circumstances of the present case, it was submitted that a due inquiry was conducted by the learned court below and after being satisfied with the report so produced, the suit was duly registered. Hence, the impugned order does not call for any interference of this Court under Article 227 of the Constitution of India. In support of his contentions, the respondent-plaintiff relied upon a Coordinate Bench judgment of this Court in Roopnarain & Ors. vs. District & Sessions Judge, Baran & Ors. (S.B. Civil Writ Petition No. 5980/2011) and also a judgement rendered by the Punjab and Haryana High Court in Kaithal Gas Service vs. Kumari Annu (Minor): 1992 Lawsuit (P&H) 1678. While placing reliance upon the said judgments, it was submitted that the subject of ‘court fee’ is a matter which is limited between the plaintiff and the State. Therefore, it does not call for any intervention of the contesting parties, as no injustice would be caused to them by allowing the applicant to sue as an indigent person, exempt from paying the court fee. The respondent-plaintiff also placed reliance upon the letters issued by the Reader Grade First of the concerned court below, who vide letter dated 21.04.2022 had made an inquiry into the respondent-plaintiff’s assets, in pursuance of which, vide letter dated 25.05.2022, the Commissioner, Nagar Parishad, Hanumangarh, had submitted that no movable or immovable property stood in the name of the respondent-plaintiff, within the territorial jurisdiction of Hanumangarh. 7. This Court has considered the arguments advanced by the respective sides, scanned the record of the writ petition and perused the judgments cited at Bar. 8. 7. This Court has considered the arguments advanced by the respective sides, scanned the record of the writ petition and perused the judgments cited at Bar. 8. Before adverting to the issue in question, the following facts are noteworthy for arriving at a logical conclusion in the instant matter:- 8/1. That the respondent-plaintiff is a qualified doctor, having a MBBS Degree from the College where the petitioner-defendant was a Professor and Principal. The respondent-plaintiff had filed one S.B. Civil Writ Petition No. 7585/2008 for awarding a formal degree of MBBS in his favour; against the examination which he had passed in the year 1990-1991. He had further sought direction(s) for duly carrying out his internship, as mandated by the Rules of the Medical Council of India. The aforementioned writ petition was filed in the year 2008, whereas the final order in the same was passed on 16.02.2017. Vide said order, this Court was pleased to allow the writ petition and had directed the University of Rajasthan to issue the marksheet and degree to the respondent-plaintiff. Moreover, the Court had further directed the University of Rajasthan to allow the respondent-plaintiff to undergo an internship, as mandated according to the Rules of the Medical Council of India. 8/2. That in compliance of the said order, the MBBS Degree, as prayed for by the respondent-plaintiff, was duly awarded to him. Moreover, he was permitted to undergo the mandated internship as well. 8/3. Thereafter, respondent-plaintiff filed one suit for compensatory damages, seeking compensation to the tune of Rs. 30,75,02,642/-. The said compensation is sought on account of the undue hardship faced by the respondent-plaintiff in receiving his degree, in addition to not being able to carry out his profession and being unemployed, as compared to his contemporaries and batchmates from Medical College. Accordingly, vide Civil Suit No. 25/2022, the aforementioned compensatory damages are sought from the petitioner-defendant, the State of Rajasthan and other professors of the Medical College. 8/4. It is pertinent to note that ever since 1991 i.e. the year when the respondent-plaintiff cleared his examination till the filing of Civil Suit No. 25/2022 for compensatory damages, the petitioner-defendant as well as his contemporaries, were not made party to the legal proceedings initiated by the respondent-plaintiff. 8/4. It is pertinent to note that ever since 1991 i.e. the year when the respondent-plaintiff cleared his examination till the filing of Civil Suit No. 25/2022 for compensatory damages, the petitioner-defendant as well as his contemporaries, were not made party to the legal proceedings initiated by the respondent-plaintiff. It was only on receipt of summons in the aforementioned Civil Suit No.25/2022, wherein after the application filed by the respondent-plaintiff under Order 33 Rule 1 of the Code of Civil Procedure was allowed, the petitioner-defendant has come into action as a party in the instant matter. 9. In this background, Mr. Bharat Vyas, learned Senior Counsel appearing on behalf of the petitioner-defendant, rightly submitted that in the facts and circumstances of the instant matter, whereby an application has been filed under Order 33 of the Code of Civil Procedure for exemption from the payment of court fee in a suit valuing approximately Rs. 30 crore(s), which is of a high magnitude, the prescribed mandatory procedure, as provided under Order 33 of the CPC has to be followed, in letter as well as in spirit. 10. Therefore, on a perusal of Order 33 of CPC, it is analysed that if any suit is instituted by an indigent person, then at the outset, it has to be ascertained whether the concerned individual seeking the said exemption, is not possessed of sufficient means which may enable him to pay the fee, as prescribed by the law in such a suit. Accordingly, in order to apply for a grant of waiver from the payment of the court fee, the respondent-plaintiff must file an application as per the mandate of Order 33 Rule 2, wherein several particulars, including a schedule of movable and immovable properties with their corresponding value has to be disclosed and the same has to be verified in the prescribed manner before it can presented before the concerned court for its consideration. The civil court is mandatorily required to examine the said declaration. Thereafter, as per the mandate of Order 33 Rule 5, the Court must consider whether the said application is liable to be rejected or not, upon due consideration of clauses (a) to (g) as provided within the provision. The civil court is mandatorily required to examine the said declaration. Thereafter, as per the mandate of Order 33 Rule 5, the Court must consider whether the said application is liable to be rejected or not, upon due consideration of clauses (a) to (g) as provided within the provision. Hence, it is clear that as per the mandate of Rule 5, the court is duty bound and mandatorily required to observe that an application is filed in compliance of Rule(s) 2 and 3 of Order 33. Furthermore, a proper inquiry must be conducted by the Chief Ministerial Officer of the concerned court under Rule 1A of Order 33, for ascertaining the indigency of the applicant. The important considerations including the period of limitation, cause of action and the definition of the term “sufficient means” as provided under Rule 1, have to be analysed strictly and scrupulously. Where the application is not rejected on the grounds set out in Rule 5, the Court has to proceed under Rule 6, after duly serving notice upon the opposite party and the Government Pleader, to receive evidence that the parties may provide with regards to the determination of the applicant’s indigency. Thereafter, Rule 7 provides for the procedure to be complied with by the Court at the time of the hearing of the application so filed by the applicant, including the examination of witnesses and the consideration of arguments put forth by the parties regarding the evidence so adduced, if any. Subsequently, the application is either admitted or rejected by the Court. Lastly, Rule 9 empowers the Court with a discretionary power to revoke the permission so granted for suing as an indigent person, provided that the Court has satisfied itself of the circumstances and reasons necessitating such revocation, including vexatious conduct on part of the plaintiff during the course of the suit, change in the means possessed by the plaintiff resulting into an enhanced financial status etc. 11. In the factual matrix of the instant matter, it is observed that neither any declaration as warranted under Rule 2 was filed by the respondent-plaintiff nor any inquiry was conducted by a competent authority i.e. Chief Ministerial Officer of the Court for ascertaining the indigency of the respondent-plaintiff. 11. In the factual matrix of the instant matter, it is observed that neither any declaration as warranted under Rule 2 was filed by the respondent-plaintiff nor any inquiry was conducted by a competent authority i.e. Chief Ministerial Officer of the Court for ascertaining the indigency of the respondent-plaintiff. Furthermore, the mandate of Rule 5 was controverted while passing the impugned order dated 06.07.2022 as the learned court below did not take into consideration the factum of limitation. The cause of action in the said suit, as per the version of the petitioner-defendant, arose in the year 1991. Therefore, on a bare perusal of the facts of the case, it is observed that the matter was prima facie barred by the law of limitation. Hence, while allowing the application filed by the respondent-plaintiff, the learned court below erred in not carrying out the provisions of Rule 5 in letter as well as in spirit. Furthermore, in the writ petition filed by the respondent-plaintiff for the grant of his MBBS Degree i.e. S.B. Civil Writ Petition No. 7585/2008, the present petitioner-defendant was never made a party to the proceedings, which is reflective of the fact that the respondent-plaintiff has filed the suit for compensatory damages on an imaginary and exaggerated figure of approximately 30 crore(s) against the present petitioner-defendant and his colleagues, in order to merely harass them. It is pertinent to note that the petitioner-defendant, from whom the compensatory damages are sought is 86 years of age and is at the fag end of his life. It is also noteworthy to observe that the mandatory provision of Order 33 Rule 6, which is based on the principles of nature justice and audi alteram partem and requires the issuance of notice(s) upon the State as well as the opposite party prior to the registration of the case was bypassed and therefore, no occasion was afforded to the petitioner-defendant to lead evidence controverting the claims of the respondent-plaintiff regarding his indigency. 12. It is further observed that the inquiry under Rule 1A for ascertaining the indigency of the respondent-plaintiff was conducted by an incompetent authority. 12. It is further observed that the inquiry under Rule 1A for ascertaining the indigency of the respondent-plaintiff was conducted by an incompetent authority. At the risk of repetition, it is stated that as per Rule 1A of Order 33, the Chief Ministerial Officer of the Court possesses the authority to conduct an inquiry into the financial means of the applicant for determining whether the latter possesses the sufficient means to pay the court fee or not. However, in the instant matter, the inquiry was not conducted by a Chief Ministerial Officer of the Court. Rather, the said exercise was undertaken by Reader First Grade, who is not the statutorily authorized officer as per the provisions of Rule 1A. Hence, considering the plethora of statutory violations drawn hereinabove and having taken note of the mandatory provisions of Order 33 of the Code of Civil Procedure, this Court has no hesitation to hold that the impugned order dated 06.07.2022 was passed in great haste, without following the mandatory provisions and procedures as provided under the law. 13. The argument put forth by the respondent-plaintiff qua the availability of an alternate remedy under Rule 9 for revocation of the permission so granted to sue as an indigent person, gains no support in light of the provisions of Order 33 of the Code of Civil Procedure. Upon a bare perusal of Order 33, it is made abundantly clear that the Rules therein are drafted in a chronological manner and have to be read accordingly as well. Therefore, considering the fact that in the instant matter, the petitioner-defendant was made a party to the suit only by way of summons, after the application filed by the respondent-plaintiff under Order 33 Rule 1 was allowed, this Court has no hesitation in further holding that the mandate of Order 33 Rule (2), (5) and (6) was bypassed. Accordingly, it is a settled position of law that when there is a violation of the principles of natural justice and mandatory statutory mechanisms, the aggrieved parties may invoke the writ jurisdiction to cure the manifest errors of law in the impugned order so assailed. Hence, the argument qua the availability of an alternate remedy does not survive. 14. Accordingly, it is a settled position of law that when there is a violation of the principles of natural justice and mandatory statutory mechanisms, the aggrieved parties may invoke the writ jurisdiction to cure the manifest errors of law in the impugned order so assailed. Hence, the argument qua the availability of an alternate remedy does not survive. 14. Furthermore, the contention raised by the respondent-plaintiff regarding the subject of ‘court fee’ being limited to the contours of the plaintiff seeking an exemption and the State does not find any legal backing in the facts and circumstances of the instant matter, especially considering the fact that the impugned order was passed in violation of the provisions of Order 33 of the Code of Civil Procedure, which has inadvertently caused serious prejudice to the petitioner-defendant. While passing the impugned order dated 06.07.2022, several material considerations such as the existence of the cause of action and the bar of limitation were over-looked. Moreover, the application was admitted at a premature stage, without affording an opportunity of hearing to the petitioner-defendant, as stipulated under Rule 7 of Order 33; thereby, directly causing prejudice to the rights of the petitioner-defendant. Hence, the petitioner-defendant was well within his rights to approach this court by way of the instant writ petition under Article 227 of the Constitution of India. 15. The judgment(s) relied upon by the learned counsel for the petitioner-defendant qua the interpretation of the ambit of the term “sufficient means” as provided under Order 33 Rule 1 are in consonance with the settled position of the law, especially considering the factual background of the instant matter. During the course of arguments, this Court specifically inquired from the respondent-plaintiff, who had appeared in person, regarding the factum of his possession of a ‘Permanent Account Number’ (PAN) under the Income Tax Act, 1961. Furthermore, he was also asked whether he held a ‘Below Poverty Line’ (BPL) Card. In his response, he answered the former question in the affirmative and submitted his ‘Permanent Account Number’ to the Court; while simultaneously, addressing the latter inquiry in the negative. It is also pertinent to note that the respondent-plaintiff is a highly educated person, who has been awarded a MBBS Degree. Moreover, he is currently residing in a rented premises in Jaipur. It is also pertinent to note that the respondent-plaintiff is a highly educated person, who has been awarded a MBBS Degree. Moreover, he is currently residing in a rented premises in Jaipur. It is also reflected from the record that the respondent-plaintiff has filed dozens of litigation across the State of Rajasthan. Therefore, considering the undisputed and admitted factum of financial support by friends and family coupled with possession of a ‘Permanent Account Number’, which as per the provisions of Section 139A of the Income Tax Act is issued only to persons having a taxable income, which according to the current slab stands at approximately five lakh rupees, this Court is of the view that the learned court below erred in arriving at an uninformed decision, without taking into consideration relevant materials of information, as stated above. 16. Considering the findings arrived at herein-above and relying upon the dictum of the Apex Court in Mathai M. Paikedy (Supra), it is observed that the learned court below, while dealing with the issue of ascertaining the scope of “sufficient means” as provided under Rule 1, should have taken into consideration the financial assistance received from family members or close friends as the said expression contemplates ability or capacity of a person in ordinary course to raise money by available lawful means to pay the court fee. Hence, factors such as a person’s employment status and financial assistance received from family members or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent pay the requisite court fee. 17. The judgments cited by the respondent-plaintiff are distinguishable as they have eluded the consideration of the scheme of Order 33 and the chronological reading of its provisions i.e. Rules (2), (5) and (6), which have been bypassed and violated in the facts and circumstances of the instant matter. 18. Considering the discussions and findings as observed hereinabove, this Court has no hesitation to set aside the impugned order dated 06.07.2022, with a direction to the learned court below to consider the matter afresh, after duly taking into consideration the statutory scheme of Order 33 of the Code of Civil Procedure and the Rules framed therein, as applicable in the factual matrix of the instant matter. 19. 19. Any observation made by this court in this order will not come in the way of independent adjudication with the court below and shall not cause any undue prejudice to the parties thereto. 20. Accordingly, the writ petition is allowed in above terms. All pending applications stand disposed of.