IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GAJENDRA SINGH th ON THE 13 OF FEBRUARY, 2024 MISC. APPEAL No. 1226 of 2015 BETWEEN:-

SMT. MUNNI YADAV W/O SHRI CHHOTELAL YADAV, AGED ABOUT 30 YEARS, GRAM POST AMILKI GOVINDGARHY TEH. HUZUR DISTT. REWA (MADHYA PRADESH)

.....APPELLANT (BY SHRI PARAG S. CHATURVEDI - ADVOCATE)

AND

1. THE CHIEF MEDICAL AND FAMILY WELFARE HEALTH OFFICER REWA REWA (MADHYA PRADESH)

2. BLOCK MEDICAL AND HEALTH OFFICER PRIMARY HEALTH CENTERE, GOVINDGARH, REWA DISTT REWA (MADHYA PRADESH)

3. COLLECTOR REWA DISTT REWA (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI P.N. VERMA - PANEL LAWYER FOR THE STATE)

This appeal coming on for admission this day, the court passed the following:

ORDER

This miscellaneous appeal under Order 43 Rule 1(na) of CPC has been preferred feeling aggrieved by the order dated 21.01.2015 in civil suit no.113/2015 by District Judge, Rewa whereby the application under Order 33 Rule 2 of CPC for permission to sue as indigent person has been rejected.

Signature Not Verified Signed by: HIMANSHU

2. Facts in brief are that appellant filed an application alongwith the plaint to sue as an indigent person for a compensation of Rs.8,33,000/- due to failure of Tubectomy surgery submitting that she has no means to pay the Court fees. She filed a list of belongings and which total worth was mentioned as Rs.1090/-

.

3. Learned counsel for the State opposed the prayer on the ground of letter dated 16.07.2009 of Additional District Magistrate, Rewa, letter of Sub- Divisional Officer dated 01.07.2009 and letter of Nayab Tehsildar dated 29.06.2009 in which annual income of appellant was mentioned as Rs.22,000/-

per annum.

4. Trial Court examined appellant-Munni Yadav as PW-1 in which she produced the Ration Card of Below Poverty Line and trial Court rejected the application and extended of time to deposit the Court fees.

5. Feeling aggrieved by the order, this appeal has been preferred on the ground that the Trial Court mechanically passed the order without appreciating her economic condition as depicted through Ration Card of Below Poverty Line. The income reported is without any proof.

6. Heard learned counsel for the parties.

7. Learned counsel for the State opposed the prayer.

8. Perused the record.

9. Learned counsel for the State did not submit the report from the office of Collector despite the instruction regarding this vide order dated 09.10.2017. The definition of indigent person in Explanation I and II of Order 33 Rule 1 of CPC is being reproduced as below :

"Explanation I.- A person is an indigent person,-

(a) if he is not possessed of sufficient means (other Signature Not Verified Signed by: HIMANSHU 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, or (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."

10. Order XXXIII Rule 10 prescribes the procedure where indigent person succeeds to recover the cost in which amount of Court fees is included and in Order XXXIII Rule 11 the procedure where indigent person fails. In both the condition the Court fees has to be realised. The only fact is that the payment of Court fees is only differed and not waived.

11. The finding of the Trial Court does not indicate that what was the basis of information showing the income of appellant/plaintiff as Rs.22,000/- per annum and whether that income constitutes sufficient means to enable him to pay the prescribed by law for the plaint in the suit.

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