Karamjit Singh and Others vs Tej Kaur

G.C. Garg, J.—The challenge here is to the order dated July 21, 1992 passed by Sub Judge Ist Class, Dhuri, whereby an objection raise as to the maintainability of an application under Order 33 Rule 2 of the CPC was overrule.

Shorn of details, few facts may be noticed:

Plaintiff field a suit for declaration and possession by setting aside a sale dead on the ground that it was the outcome of fraud and misrepresentation etc. The defendants pleaded that the sale was a genuine transaction. Evidence of the plaintiff was recorded and thereafter an application was moved for amendment of the plaint, which was allowed by order dated August 1, 19991. The issue relating to evaluation was treated as preliminary issue and on concluding the issue, the plaintiff was directed to pay ad valorem court fee on the face value of the sale deed. It was the reafter the plaintiff moved application under Order 33 Rule 2 of the Code seeing permission to sue as an indigent person.

An objection was taken by the defendants as to the maintainability of the said application. Cosequently, the trial Court framed the following issues on the application :

Whether the applicant is indigent person ? OPA

Whether the application is not maintainable ? OPR.

By the order under revision, as already noticed, the trial Court over ruled the objection and concluded that the application was maintainable. It is against this order, the present revision petition has been filed.

The parties were served and represented by their respective counsel but they chose not to appear in Court perhaps because of a call given by the High Court Bar Association to go on strike.

I have gone through the order and considered the matter. I find that by the order under revision, nothing against the defendants has been decided by the trial Court. It is yet to be adjudicated upon whether the applicant i.e. the plaintiff is or is not an indigent person. It cannot be said that once the Court orders the plaintiff to make deficiency in court fee, the application to continue the suit as an indigent person cannot be filed. If the plaintiff proves that he is an indigent person, he has to be granted permission to continue his suit as such but in case he fails to do that he has to make good the deficiency in court fee as already ordered. In my view, it cannot be said that once an order is passed directing the plaintiff to make good the deficiency in court fee, he is debarred to seek permission to sue or to apply to continue the proceedings as an indigent person and the plaint is liable to be rejected on that ground. The occasion to request the Court to sue as an indigent person arose only after the Court came to the conclusion that court fee was required to be paid ad valorem on the plaint. It cannot be held as a matter of law that once a suit is filed in the ordinary way, the plaintiff is debarred to make an application for continuing the suit as an indigent person even in a situation where he is unable to pay court fee as demanded by the order passed after filing of the suit.

For the reasons aforesaid, the revision petition fails and is dismissed. The order staying the proceedings of the suit in the trial court is consequently vacated and the trial court is directed to decide the suit as expeditiously as possible as both the parties are represented by their counsel. There will, however, be no order as to costs.