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2003 Supreme(J&K) 358
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Permod Kohli, J.
Mudit Jain - Appellant
Versus
Divya Jain & Anr. - Respondent
Civil Revision No. 186/2003
Decided On : 18 November, 2003
Advocate For Appellant: Sakal Bhushan
Advocate For Respondent: K.S. Johal
The central legal point established in the judgment is that the declaration of indigent status must adhere to the procedure prescribed under Order 33 Rules 6 to 8, which require evidence and opportunity of being heard before allowing the applicant to sue as an indigent person.
Headnote:
Order 33 - Indigent Persons - Order 33 Rule 1, Order 33 Rule 5, Order 33 Rule 6, Order 33 Rule 7, Order 33 Rule 8
Fact of the Case:
The respondents filed a petition seeking permission to sue as indigent persons. The court declared them indigent without following the mandatory procedure under Order 33 of the Code of Civil Procedure. The petitioner challenged the order, and the court set aside the orders dated 20.1.2003 and 27.8.2003, directing the District Judge to proceed in accordance with the prescribed procedure under Order 33 CPC.
Finding of the Court:
The court found that the orders declaring the respondents as indigent persons were not sustainable in law and required to be set aside. It also observed that the trial court must determine the status of the plaintiffs as indigent persons based on evidence and opportunity of being heard, as prescribed under Order 33 Rules 6 to 8.
Issues: The main issue was the validity of the orders declaring the respondents as indigent persons without following the prescribed procedure under Order 33 CPC.
Ratio Decidendi: The court held that the declaration of indigent status must be based on evidence and opportunity of being heard, as prescribed under Order 33 Rules 6 to 8, and the trial court must adhere to the procedure before proceeding with the trial.
Final Decision: The petition was allowed, and the orders dated 20.1.2003 and 27.8.2003 were set aside. The District Judge was directed to proceed to hear the parties in accordance with the procedure prescribed under Rule 6 to 8 of Order 33 CPC and pass appropriate orders.
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. 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 pres
