The inquiry into a plaintiff's indigency must adhere strictly to procedural fairness, ensuring that the opposing party is given an opportunity to contest any claims of being an indigent person.

ORDER

This miscellaneous petition under Article 227 of the Constitution of India is filed assailing the Order dated 16.05.2024 passed in RCS - 62A of 2023 by the Second Civil Judge, Junior Division, Agar Malwa, whereby the application filed by the petitioner/ defendant requesting recall of the Order dated 14.06.2023 was rejected.

2. The exposition of facts, in brief, giving rise to present petition is as under -:

1. The respondent, Om Prakash Chavan, filed a civil suit for possession of a shop in specific performance of the contract. The plaint was submitted with an application under Order XXXIII Rule 1, read with Section 151 of CPC before the Court of Second Civil Judge Junior Division, Agar Malwa. The Court of first instance, after presentation of plaint, fixed the matter for hearing on registration.

2. The Court of first instance conducted an inquiry into source of income of the plaintiff. The Court considered the application under Order XXXIII Rule 1 of CPC for exemption to pay the court fees and to prosecute the proceeding as an indigent person. The court heard the plaintiff and considered the statement and income certificate submitted by the plaintiff and allowed the application granting him permission to file the suit as an indigent person. Accordingly, the exemption to pay the court fees and process fees was granted and the plaint was registered as RCS No. 62A of 2023.

3. The defendant appeared on service of the summons and preferred an application (IA No. 1 of 2023) for recall of the Order dated 14.06.2023 alleging that the plaintiff has adequate source of income and the Order was passed in violation of express provisions of Order XXXIII of CPC .

4. The Second Civil Judge Junior Division, Agar Malwa, after hearing both the parties, rejected IA No. 1 of 2023 vide impugned order dated

16.05.2024.

3. The impugned order is assailed in present petition on following grounds-

1. The Court of first instance did not inform the defendant and the Government Pleader in compliance with the provision contained in Order XXXIII Rule 6 of CPC . Further, no opportunity to lead evidence or hearing was accorded to the defendant or Government Pleader before granting the permission to sue in forma pauperis.

2. The impugned order is illegal and violates the principles of natural justice.

On these grounds, it is requested that the Order dated 14.06.2023 and

16.05.2024 be set aside.

4. Learned counsel for the petitioner, in addition to the ground stated in the petition, submitted that the permission to sue as an indigent person is not merely a question between the applicant and the State, rather, the interest of opposite party is relevant. Therefore, Order XXXIII Rule 6 of CPC provides for notice and opportunity of hearing to the opponent and the Government pleader. Learned counsel relied on the judgment of Supreme Court in case of Shri M. L. Sethi Vs. Shri R. K. Kapoor reported in (1972) 2 SCC 427 to buttress his contentions.

5. Per contra, learned counsel for the respondent opposed the petition and contended that the trial Court, on consideration of the material on record, granted permission to sue as an indigent person. The petitioner/ defendant failed to show any grounds enumerated in Rule 9 of Order XXXIII of CPC , therefore, the trial Court committed no error in rejecting the application.

6. Heard both the parties, perused the record.

7. Order XXXIII of CPC provides for Suits by indigent persons as under-

1. Suits may be instituted by indigent persons.

Subject to the following provisions, any suit may be instituted by an in