Khatoon Khuda Bux and others vs Abdul Rahim and others

N.C. Kochhar, J.—The facts giving rise to this revision peti''ion u/s 115 of the CPC ("the Code"), agains; the order dated 24th January, 1990, are as under:-

An application under Rule 1 of Order 33 of the Code, was filed by Mst. Khatoon, the predecessor in-interest of the present petitioners, claiming certain rights in the property in dispute and praying that she be declared as an indigent person and be allowed to sue, without paying the necessary Court-fee. The application was opposed by the respondents. Before the''inquiry about the status of Mst. Khatoon could be concluded and her request for being permitted to sue without paying the necessary Court-fee could be examined, she died, and thereupon, an application under Order 22, Rule 3 of the Code, was moved by the petitioners, praying that they be brought on record as her legal repre�sentatives, The application was opposed by the respondents and was dis�missed by the learned trial Court vide the order dated 5th Janurary, 1988, observing that there was nothing to show that the petitioners were also indigent persons, but that if they were so advised, they could file a fresh application for being declared as indigent persons. Thereafter, the petitioners filed another application, stating that all of them were indigent persons and were unable to pay the Court-fee prescribed for filing of the suit, and praying that they be brought on record as the legal representatives of Mst. Khatoon, and be permitted to sue without filing the necessary Court-fee. The respondents opposed the application, and the learned trial court vide the impugned order dated 24th January, 1990, has dismissed the same.on the ground that their earlier application has been dismissed and also on the ground that no suit was pending and that the application filed under Order 33, by Mst. Khatoon had abated.

Feeling aggrieved, the petitioners have approached this Court by filing this revision petition.

Notice of the revision petition was issued to the respondents, and with the consent of the Learned Counsel for the parties, I have heard arguments for disposal of this revision petition at the admission stage itself.

It is not disputed before me that an application under Order 33 of the Code is nothing but a plaint in the suit, with a prayer that the applicant/plaintiff be allowed to sue without paying the necessary Court-fee, as he is not in a posititon to pay the same, and this application is registered as a suit after either the application is allowed and the necessary permission is granted, or on the permission being refused, the court-fee is paid by such applicant, who in such situations, attains the status of the plaintiff in the suit, it is aslo not disputed that no suit would abate, aunless the legal representatives have not approached the Court by filing an application for being brought on record, within the statutory, period after the death of the original plaintiff/applicant. It is also not disputed before me that not only the earlier application, but even the application (which has been dismissed vide the impugned order) had been moved within 90 days of the death of Mst. Khatoon^ and in the application, it was stated by the petitioners that they were unable to pay Court-fee, and had prayed that they be permitted to sue without paying the same, and had also prayed that they be brought on record as the legal representatives of Mst. Khatoon. Such an application having been moved within 90 days of the death of Mst. Khatoon, the application/suit could not have abated, and the application could not have been dismissed on that ground or on the ground that the earlier application in this regard had been dismissed, specially when, while dismissing the earlier application, the learned trial court itself had observed that if so advised, the petitioner could move a fresh application, stating that they were unable to pay the Court-fee. The learned trial Court was required to determine firstly as to whether the petitioners are the legal representatives of Mst. Khatoon, and were entitled to be brought on record as such, and secondly as to whether they are indigent persons, and can be permitted to sue as such, and in my view, while dismissing the application, the learned trial Court has committed an error of jurisdiction, and the impugned order cannot be allowed to stand.

Consequently, I accept this revision petition, set aside the impugned order, and remand the case to the learned trial Court, to decide both the prayers made in the application moved by the petitioners, i.e. for bringing them on record as the legal representatives of Mst. Khatoon, and for being declared as indigent persons. The revision petition is decided accordingly. The parties, through their Learned Counsel, are directed to appear before the learned trial Court, on 20th March, 1993. A copy of this order, along with the lower Court records, be sent to the learned trial courts so as to reach there latest by 18th March, 1993.