IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL th ON THE 4 OF MAY, 2023 MISC. APPEAL No. 1200 of 2014 BETWEEN:-

SMT. PUSHPA JOSHI W/O SHRI SATYA NARAYAN JOSHI, AGED ABOUT 50 YEARS, A-318 YASHBAG BHOPAL (MADHYA PRADESH)

.....APPELLANT (BY SHRI UMESH SHRIVASTAVA - ADVOCATE)

AND MS. SHIMLA CHOUBEY D/O NOT KNOWN, AGED ABOUT 40 YEARS, MAHILA ITI BHILAI, DISTT. DURG (CHHATTISGARH) .....RESPONDENTS (NONE FOR THE RESPONDENT)

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

ORDER

This Miscellaneous Appeal is filed being aggrieved of the order passed rd st by the III Additional Judge to the court of 1 Additional District Judge, Bhopal in unregistered Civil Suit dated 20/12/2012 Smt. Pushpa Joshi Vs. Ms. Shimla Choubey under Order 43 Rule 1 C.P.C. on the ground that the learned Additional District Judge has arbitrarily rejected an application invoking the provisions contained in Order 33 Rule 11 and Order 33 Rule 5 erroneously taking into consideration a fact that since the appellant is in receipt of a Signature Not Verified SAN maintenance of Rs. 2,000/- per month or Rs. 24,000/- per annum, therefore, she is not an indigent person and further that even if the suit succeeds, she will not be in a position to pay the court fees.

Shri Umesh Shrivastava submits that this treatment of an application to permit to sue as an indigent person is erroneous and deserves to be set aside.

Learned counsel for the appellant places reliance on the judgment of a coordinate Bench of this High Court in Fulabai w/o Chagganlal and another Vs. State of M.P. and others 1998 (1) MPLJ 486.

On a perusal of the case filed, it is evident that evidence of Smt. Pushpa Joshi was recorded by the learned Judge on 4/07/2012 wherein she had categorically deposed that her husband Satya Narayan Joshi is residing separately with another lady Shimla Choubey. She deposed that she has no source of income and also does not possess any movable or immovable property. She further deposed that she filed a case for maintenance against the husband and her husband has not paid any maintenance since last four years in relation to which she had filed a case of recovery before the Family Court. She is sustaining herself on the strength of help given by her son-in-law and her parents.

When this evidence is taken into consideration, then the finding recorded by the learned Additional District Judge that plaintiff Pushpa Joshi had deposed that she will not pay any court fees even if the suit fails is contrary to the record.

Infact the approach of the learned Additional District Judge, prima facie appears to be incongruent. Learned Additional District Judge has failed to take into consideration that the provisions contained in Order 33 Rule 1 deals with suits to be instituted by indigent persons i.e. persons who are not possessed of Signature Not Verified SAN sufficient means (other than property exempt from attachment in execution of a decree and the subject mater of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit. Moreover, the court fee is a matter between the appellant and the State and not the contesting parties. Further Section 60 of the Code of Civil Procedure, 1908 provides in Clause n that a right to future maintenance are not liable to such attachment or sale.

The Hon'ble Court has held that Order 33 Rule 1 (a) of the CPC provides for an inquiry to be done by the court for the purpose of finding out whether the persons seeking such permission is indigent or not. The said inquiry should always be reasonable. The provisions of Order XXXIII have been enacted for the purpose of allowing a person to sue as an indigent if he happens to be unable to pay the court fees. The provisions of Order XXXIII have been enacted with a benevolent view. It never means that the indigent person should sell out all his property and put himself without any source of livelihood. That does not mean that he should