IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL ON THE 4^th OF JULY, 2022 MISC. APPEAL No. 694 of 2017 Between:-

SMT. SADHNA W/O KAILASH D/O LATE KANHAIYALAL KHATEEK KAITHORIYA, AGED ABOUT 46 YEARS, SANT KABEERDAS MARG NEAR MANDIR SAGAR (MADHYA PRADESH)

.....PETITIONER (BY SHRI IMTIAZ HUSAIN, SENIOR COUNSEL ASSISTED BY SHRI MOHAMMAD SAJID KHAN, ADVOCATE)

AND

1. SMT. SUSHELABAI D/O LATE KANHIAYALAL KHATEEK KAITHORIYA W/O CHHUNILAL KHATEEK PATTA MOHALLA DISTT. SAGAR (MADHYA PRADESH)

2. PHOOLOBAI D/O LATE KANAIYALAL KHATEEK (KAITHORIYA), AGED ABOUT 60 YEARS, VILL.

KOLARAS, TEH SHIVPURI (MADHYA PRADESH)

3. RAJA S/O PURSHOTAM KHATEEK, AGED ABOUT

35 YEARS, GRAM VARAHA MOHALLA SADAR, SAGAR (MADHYA PRADESH)

4. BUNTI S/O PURSHOTAM KHATEEK, AGED ABOUT 33 YEARS, GRAM VARAHA MOHALLA SADAR, SAGAR (MADHYA PRADESH)

5. RINKU S/O PURSHOTAM KHATEEK, AGED ABOUT 31 YEARS, GRAM VARAHA MOHALLA SADAR, SAGAR (MADHYA PRADESH)

6. AKTA D/O PURSHOTAM KHATEEK, AGED ABOUT 24 YEARS, GRAM VARAHA MOHALLA SADAR, SAGAR (MADHYA PRADESH)

Signature Not Verified SAN

7. PINKI D/O PURSHOTAM KHATEEK, AGED ABOUT 18 YEARS, GRAM VARAHA MOHALLA Date: 2022.07.12 12:47:07 IST SADAR, SAGAR (MADHYA PRADESH)

8. SHAKUNTALA W/O GOPAL KHATEEK, AGED ABOUT 52 YEARS, MACHARIHAI SAGAR, SAGAR (MADHYA PRADESH)

9. KRISHNA D/O LATE KANAIYALAL KHATEEK, AGED ABOUT 50 YEARS, SHIV WARD BEENA, TEH BEENA, (MADHYA PRADESH)

10. RAUJ ALIAS RAJUKUMAR S/O LAT KANAIYALAL KHATEEK (KHAITHORIYA), AGED ABOUT 48 YEARS, SHIVA WARD SATATION ROAD, BEENA (MADHYA PRADESH)

11. STATE OF M.P THROUGH COLLECTOR DISTT.

SAGAR (MADHYA PRADESH)

.....RESPONDENTS (RESPONDENT NO.1 BY SHRI PRIYANK CHOUBEY, ADVOCATE)

(RESPONDENT NO.11/STATE BY SHRI JITENDRA SHRIVASTAVA, PANEL LAWYER)

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

ORDER

This miscellaneous appeal is filed by the appellant being aggrieved by order dated 9.2.2017 passed by the learned Additional District Judge Bina, District Sagar in M.J.C No.20/2014 rejecting the application filed by the appellant under Order XXXIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (for brevity "C.P.C") invoking the provisions of Order XXXIII Rule 5 of the C.P.C.

The facts of the present case are that the appellant is claiming herself to be an indigent person. She had filed a suit against her brother & sister seeking relief of partition of her parental property making valuation of suit for declaration at Rs.20,00,000/-, for injunction at Rs.1,000/- and for partition at Rs.2,86,000/- claiming that she being indigent, no Court fee is required to be Signature Not Verified SAN paid by her. The aforesaid application was filed and was registered as M.J.C No.20/2014. The appellant claimed that she is working as Aganwadi Karyakarta and in the year 2011, her monthly remuneration was Rs.2500/- per month and she is entitled to be declared as an indigent person and she be allowed to contest her case treating her to be an indigent person.

Shri Imtiaz Husain, learned Senior Counsel for the appellant places reliance on the judgment of Andhra Pradesh High Court in Bommineni Laxmi Devamma versus Bommineni Konappa AIR 1990 Andhra Pradesh 115 wherein it is held that the omission to mention some property possessed by the applicant is not a ground for rejection under Order XXXIII Rule 5(a) of the C.P.C and if the application does not conform to Rule 2 & 3 then an opportunity should be given to rectify the defect. Order XXXV Rule 5 of the C.P.C as it relates to the procedure, it is only directory and not mandatory. The application cannot outright be rejected. Some mistakes may occur sometimes deliberate and sometimes accidental. In a welfare State, the poverty should not come in the way of a person for enjoyment as right to sue and that is why Order 33 of the C.P.C enables an indigent person to enjoy that right. At the same time, a beneficial provision like Order 33 of the C.P.C cannot be permitted to be misused by unscrupulous litigant