Gulzar Mohd. vs Manira Begum

Respondent has been divorced by the petitioner. She sought leave to sue in forma paupris for the recovery of Rs. 50,000 as MEHAR (Dower).

After inquiry the trail court declared her to bean indigent person and permitted her to sue in forma paupris. The petitioner feels aggrieved and has

filed this revision petition challenging the order impugned dated 23.9.1993 passed by the learned District Judge, Pwnch on the sole ground that the

court below had not issued any notice to the Collector on Respondent's application which vitiated the whole proceedings and the consequential

order. This was the only point argued before me by the learned counsel. Therefore, all that arises for consideration is: whether the notice to the

Collector is a prerequisite in an application seeking leave to sue in forma paupris under Order XXXIII C.P.C. or whether its noncompliance

vitiates the order.

There is no provision in the amended O.XXXIII C.P.C. which envisages a notice to the Collector in an application seeking leave to sue in forma

paupris. Rule 6, however, provides that where the court does not reject the application on any of the grounds stated in rule 5, it shall fix a day (of

which atleast 10 days clear notice shall he given to the opposite party and the Govt. pleader) for receiving such evidence as the applicant may

adduce in proof of his pauparism. Under this rule a notice to the opposite party and the Govt. pleader is imperative hut not the Collector. Since it is

not the case of the petitioner that no notice was issued to the Govt. pleader, as such there is no breach of the provisions of rule 6 even. The

petitioner has referred to and relied upon AIR 1927 Calcutta 464, AIR 1951 Kutch 96, 1979 JKLR 522,1980KIJ284,AIR 1954Nagpurn252

and AIR 1977A.P.51.All these decisions are distinguishable on facts and law.

In AIR 1927 Calcutta 426, the trail court had disposed of the application seeking leave to sue in forma paupris without any notice to the other

party. Similarly in AIR 1954 Nagpur, the court had directed notice to the Collector which was not served on him and in which he has not

submitted any report. In AIR 1977 A.P.,the applicant had failed to disclose the assets in his application. In respect of AIR 1955 Kutch, this Court

has not subscribed to the view taken. Similarly 1979 JKLR dealt with whether the defendant had any say in the adjudication of the plaintiffs

application seeking permission to sue. The judgment relied do not lay down any proposition or principle that the notice to the collector is

mandatory in an application for permission to sue in forma paupris. Even 1980 KLJ cited overrules the contention raised by the petitioner.

The payment of court fees is primarily a matter between the State and the applicant thought the defendant has a right to participate in the

proceedings to establish that the applicant is not an indigent person and as such has a vital interest in the matter. But that by itself docs not suggest

that he will takes upon himself role of the State and complain about the failure of the court to issue notice to the Collector or for I he matter the

Govt. pleader. It may be desirable to issue such notice or ask for the report from the collector. But noncompliance thereof cannot certainly vitiate

the proceedings or invalidate the order declaring a person as an indigent person, more so where the opposite party has been put on notice and

afforded reasonable opportunity to participate in the proceedings and to dispute the claim of the applicant Are vision is a discretionary remedy and

the High Court would interfere only in exceptional circumstances where the petitioner is able to show some material irregularly or failure of justice.

Given regard to this position I find no substance in this petition even on merits. As is evident from the order impugned, the petitioner has stayed

away even in the inquiry conducted by the section officer of the Court and thereafter when he was afforded opportunity to produce evidence in

support of his objections, he failed to do so. It no longer lies in his mouth to turn round and attack the impugned order on mere technicalities. The

fact remains that he was afforded a reasonable chance to participate in the proceedings and to oppose the claim and having failed, his effort seems

to be to catch at a straw to prevent the respondent from pursuing her cause.

In the circumstances this revision petition is dismissed in limine along with C.M.P. No. 648 of 1993.