The main legal point established in the judgment is that the application to sue as an indigent person must be presented in person as required by Order 33 Rule 3 of the CPC, and notice must be given to the defendant before declaring the plaintiff as an indigent person, as mandated by Order 33 Rule 6.

Rakesh Kumar Jain, J. - The respondent-plaintiff filed a suit for damages of Rs. 10,00,000/- against the petitioner, who is a doctor, for the forcible and unnecessary premature delivery, resulting into death of her male child. She also filed an application under Order 33 Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") for seeking permission to sue as an indigent person in which an order was passed on 23.11.2012 in the following manner:-

"Present: Sh. Mange Ram, Adv. for plaintiff.

Suit presented today before me. Since this suit has been filed in the capacity of indigent person so pauper application be checked and registered. Pauper report of collector through SDM, Dadri be also called on or before 12.01.2013 date fixed separately.

Yogesh Choudhary

ACJ(SD), Dadri.23.11.2012."

2. Ultimately, the Patwari submitted his report in which he stated that Suman wife of Ashok Kumar son of Satpal, Jat by caste, permanent resident of village Mankawas is an indigent person. The said report dated 09.01.2013 was taken into consideration by the Civil Court and on 05.03.2013, the following order was passed:-

"Today, the case is fixed for awaiting report of Ld. Collector qua the status of plaintiff. It has been reported that the applicant is an indigent person. In view of the report submitted by Tehsildar, Charkhi Dadri, the applicant is hereby declared as an indigent person. The suit is ordered to be checked. Now notice to defendant be issued for 27.07.2013. Long date is given due to heavy pendency of old cases."

3. Thereafter, the petitioner filed an application for setting aside the ex parte order dated 05.03.2013 on the ground that no notice was given to her before deciding the application declaring the plaintiff as an indigent person. It was also alleged that the Patwari is not the competent person to declare the plaintiff as an indigent person nor he had given any reason in his report. The said application was contested by the plaintiff and vide the impugned order dated 08.05.2014, the application filed by the petitioner was dismissed, observing that the Civil Court is not competent to decide the fact as to whether the plaintiff is an indigent person or not which could have only been decided on the executive side.

4. Counsel for the petitioner has argued that the learned Court below has erred in allowing the application filed by the plaintiff to sue as an indigent person without notice to the defendant/petitioner, as required under Order 33 Rule 6 of the CPC. It is further submitted that even otherwise, the application seeking permission to sue as an indigent person filed by the plaintiff was not presented in person, as required under Order 33 Rule 3 of the CPC and is liable to be rejected in view of Order 33 Rule 5(a) of the CPC. In support of his contention, counsel for the petitioner has relied upon two judgments of this Court in the case of Prem Sardana v. Savitri Devi, 2001(1) Latest Judicial Report 103 and Birender Kumar v. Mohinder Singh and others, 1985(2) PLR 612.

5. On the other hand, learned counsel for the respondent has argued that the plaintiff has rightly been declared to be an indigent person as the Halqa Patwari had examined the revenue record and declared her as such. It is further submitted that the application filed along with the suit to sue as an indigent person is duly signed by the plaintiff and verified in terms of Order 33 Rule 2 of the CPC and the plaintiff was not required to be present in the Court at the time of presentation of the suit along with application as she had already engaged an advocate on her behalf. It is further submitted that notice is not required to be served upon the defendant at the time of declaration of the plaintiff as an indigent person as the question of payment of Court fee is between the citizen and the State. In this regard, he has relied upon a Division Bench judgment of the Rajasthan High Court in the case of Smt. Manjulata v. Sidhkaran, AIR 2005 Rajas