Abdul Aziz Parray vs State and Others

Bashir A. Kirmani, J.—Nobody has appeared for respondents on previous date also. Accordingly, they are proceeded against in ex-parte

and the matter taken up for hearing/disposal.

Impugned in this revision petition are orders purporting to have been passed by 1st. Additional District and Sessions Judge, Srinagar on 30th of

April and 30th of June 2005 in the Civil Original Suit captioned Abdul Aziz Parray v. State of Ors. wherein he first accepted respondents plea for

arguing petitioners pauperism and later allowed them to lead evidence against the same.

It appears that the COS No. 57/1998 captioned as above was instituted in the trial court on 3rd of Nov. 1998 wherein vide order dated: 6th of

July 2000 the learned trial Judge accepted petitioners pauperism plea and in view of evidence produced by him along with report of the Nazir of

his court declared him as an indigent person and proceeded with the suit in terms of order 33 CPC exempting petitioner/plaintiff from payment of

court fee prescribed. In their written statement respondent department raised the plea that plaintiff/petitioner was not entitled to continue the suit as

an indigent person, whereupon the trial court vide order dated: 30th of April 2005 allowed their counsel to address arguments in this behalf and

later under order dated: 30th of June 2005 allowed them to lead evidence in support of the plea. These two orders are assailed in this revision

petition.

Grounds pleaded are that after institution of the suit, trial court declared petitioner as an indigent person after a full dressed enquiry and recorded

as order to that effect which was not challenged by defendants and as such the issue could not be re-opened on their plea as raised in the written

statement otherwise than in accordance with the provisions of Order 33 Rule 9 and as such the impugned orders were bad. During course of his

brief submissions, petitioners counsel has, besides reiterating the contents of revision petition, also stated that the suit was already at an advanced

stage wherein he had adduced his part of evidence also, but due to impugned orders, the suit was likely to suffer delay. Nobody is present on

behalf of respondent/State to argue the matter.

I have heard learned Counsel and considered the matter. Before proceeding ahead it would be appropriate to notice provisions of Order 33

CPC covering the matter; according to which a person who is not possessed of sufficient means and is unable to pay the prescribed court fee may

sue as an indigent person through an application under Rule 2 of said order containing all particulars required in regard of a plaint and a schedule of

his movable/immovable property with an estimated value thereof and sign and verify the same before presenting it in the court. On receipt of same,

the court may after examining him, if it does not see of any reason to dismiss it under Rule 5, fix it for receiving evidence in support of and against

the applicants claim of pauperism with notice to other side, and in case it finds the claim well founded, grant the application which would be

numbered and registered as a suit and proceed ahead accordingly. If later at any stage the court on application of other side or Govt. pleader finds

the petitioner/plaintiff to have been guilty of vexatious or improper conduct or a person of means etc, it may dis-pauper him.

Instantly, the petitioner/plaintiff has been declared indigent after an enquiry by the learned trial judge conducted in absence of

defendants/respondents who as per their application dated: 03.09.2004 were later proceeded against in ex-parte on 27.06.2002 and 29.08.2002

respectively. Thus the learned trial judge issued process upon respondent/defendants only after conclusion of enquiry of plaintiff/petitioners

pauperism which concluded with his declaration as such. It therefore appears that procedure envisaged under Rule 6 of Order 33 CPC where

under at least ten days notice was required to be given to opposite party before recording petitioners/plaintiffs evidence in support of his claimed

pauperism etc. was not followed. As a matter of fact the pauperism proceedings also appear to have been conducted in ex-parte while

respondents/defendants had no occasion to participate and challenge the petitioners claim in that behalf. That being so, the first chance available to

respondents/defendants to raise the plea against plaintiffs claim of pauperism was only when they filed their written statement which they promptly

did whereupon learned trial judge passed the impugned orders. The objection taken by petitioners counsel is that instead of taking the objection

through a plea in written statement the defendants/respondents, should have filed a separate application under Rule 9 of Order 33 CPC for

dispaupering the petitioner which would be tried on its own merit, and since that was not done, the impugned orders were bad. For what follows,

the contention appears to be mis-placed.

As per sequence of the rules contained in Order 33 CPC, the trial Judge while considering petitioners claim of pauperism is required to record

evidence in support thereof only after minimum ten days notice to the respondents and the Govt. Pleader and thereafter record evidence of both

sides. As already said, that was not done in the instant matter, rendering declaration of petitioners pauperism inherently bad which persuaded the

court to reopen it when pointed out and therefore in given circumstances, the court must be deemed to have reopened the matter suo moto after it

became conscious of the procedural mistake as aforesaid involved; and against correction of mistakes in a particular proceedings no procedural

rule can perhaps be invoked, particularly when the wrong sought to be rectified is itself a result of non adherence to the procedural rules. In that

view of the matter the contention that the question of petitioners pauperism could only by reopened through an application under Rule 9 of Order

33, though technically arguable does not appear to have substance. Moreover, petitioners pauperism having been declared in exparte, the setting

aside of exparte proceedings later must be deemed to have taken that also into its sway, rendering the question again open.

Accordingly, the revision petition is dismissed, of course with a direction that to avoid possible delay in trial of the suit, learned trial judge may

proceed ahead to re-consider plaintiffs pauperism, in accordance with Order 33 CPC, record his evidence and the rebuttal evidence of other side

and then pass appropriate orders thereupon. Simultaneously however, the proceedings in main suit be also continued and the moment the court

finds his claim of pauperism bad, it shall ask him to furnish requisite court fee etc. Otherwise the suit would proceed as it is. The revision petition

stands accordingly disposed of. Copy of this order be communicated to court below.