O R D E R

Indore: Date: 20.10.2021:

The petitioner/plaintiff has filed the present petition under Article 2

1 of the Constitution of India against order dated 08.09.2021 whereby learned Civil Judge, has dismissed the application filed under Order 19 Rule 1 of the Code of Civil Procedure,1908.

2. The petitioner/plaintiff has filed the application under Order 33 Rule 1 of the C.P.C. as an indigent person seeking a declaration of title, cancellation of sale deed dated 05.06.2011 permanent injunction. The learned Civil Judge has directed the Collector, Neemuch to submit a report in respect of properties, assets and income of the applicant. The Collector has directed the Tehsildar and the Tehsildar has made a spot inspection on 16.11.2019 and prepared a panchnama. The Tehsildar has directed Patwari to submit a report on the point of sufficient means in the form of movable or immovable property with the plaintiff to pay the court fees. The collector vide letter no.869 dated 05.12.2019 submitted a report on the fact that the petitioner is in possession of fridge, washing machine, scooty (MP-44-A-1772), motor cycle (MP-44-SA-4886) secondly he is a BPL card holder and his earning is Rs.6,000/- p.m. (72,000/- per annum). At the time of final argument on application under Order 33 Rule 1 of the C.P.C. the plaintiff filed an application under Order 19 Rule 1 of the C.P.C. calling the Tehsildar in the witness box for cross examination. According to the plaintiff, the Tehsildar has prepared a report at the instance of defendants and he has obtained a signature of the plaintiff on a blank papers and prepared an adverse report, therefore, his cross- examination is necessary. The learned Court has dismissed the application with the cost of Rs.1,000/-.

3. Shri Lalwani learned counsel submits that report stating incorrect has been given by the Tehsildar. The vehicle TVS Scooty is registered in the name one Kanhaiyalal has wrongly been shown in the name of the plaintiff and there are other materials which required to be explained by the Tehsildar in the witness box. The trial Court has wrongly rejected the application and if the same is not allowed injustice would be caused to the plaintiff.

Heard

6. The collector has filed the report on 05.12.2019 based on the spot inspection conducted by the Tehsildar on 16.11.2019. There is a signature of the plaintiff in the spot panchnama but now he is alleging that signature has been obtained on a blank paper. According to the plaintiff scooty has wrongly been shown as a property of the petitioner in order to value the property and income.

7. As of today the Court has only obtained a report but no final judgment has been passed. The plaintiff has already disclosed his property in the application . The court shall consider the declaration given by the plaintiff as well as the report submitted by the Collector while deciding the application filed under Order 33 Rule 1 of the C.P.C. The plaintiff has filed an application at the very belated stage that is at the time of final argument. Under Order 33 Rule 6 of the C.P.C. where the court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day for receiving such evidence as the applicant may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disprove thereof. Therefore, the burden is on the petitioner/plaintiff to prove his indigency by adducing evidence. It is for the government to give evidence in rebuttal. The procedure is prescribed for hearing the application for indigency under Order 33 Rule 7 of the C.P.C. The Court is bound to follow the said procedure. Parties are free to examine their evidence in support of their claim. Thereafter, the Court may either allow or refuse the applicant to sue as an indigent person after hearing the arguments. It is for the government to adduce the evidence in support of the report or not? The Court is bound to follow the procedure prescribed under Ord