Baljeet Singh Vs. Karamjeet Kaur and anr. - Court Judgment

Excerpt:
- harbans lal, j.1. this petition has been filed by baljeet singh under article 227 of the constitution of india for setting aside the impugned order dated 12.10.2007 annexure p-1, vide which the lower court has allowed the respondents to sue as indigent persons.2. i have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.3. the learned counsel for the petitioner agitated at the bar that a glance through the impugned order would reveal that without holding an inquiry under order xxxiii of the code of civil procedure, the respondents have been declared as indigent persons and consequently, the impugned order is liable to be set aside. as against this, the learned counsel for the respondents contended that the respondent/applicant was proceeded against exparte and that being so, he cannot take the advantage of his own wrong.4. i have well considered the rival contentions..5. order xxxiii rule 1-a of the code of civil procedure reads as under:inquiry into the means of an indigent person- every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the court, unless the court otherwise directs, and the court may adopt the report of such officer as its own finding or may itself make an inquiry into the question.6. this rule provides for the initial inquiry into the means of the applicant by the chief ministerial officer of the court but power is being given to the court either to adopt the report of such officer as its own finding or may itself make an inquiry into the question.7. adverting to the instant one, karmajit kaur as well as her daughter spinder kaur had moved an application under order xxxiii rule 1 code of civil procedure for being allowed to sue as indigent persons. the learned trial court has observed in the impugned order as under:issue no. 1:5. in support of her claim, applicant karamjit kaur herself stepped into the witness box as aw-1 and tendered her affidavit in evidence as aw-l/a in which, she reaffirmed her pleas taken in the application that the applicants were not in a position to pay the court fee.6. the submissions made in exparte evidence led by the applicants remained un-rebutted and unchallenged on record obviously due to the fact that the respondent was proceeded against ex-parte and therefore, the case of the applicant is proved and accordingly, this issue is decided in favour of the applicants.relief:7. in view of my findings on above issue, the case of applicants succeeds and accordingly, the present application for allowing the applicants to sue as indigent persons is allowed. therefore, the suit be registered as an indigent person.8. axiomatically, the learned trial court solely on the basis of the affidavit tendered by karamjit kaur applicant allowed the application. indigency is personal economy condition. so, when more than one person intends to sue as indigent, indigency of all persons together is to be considered. even if one of them is indigent or both individually are indigent, but if the means possessed of by them together is sufficient to pay the court-fee payable, permission to sue as indigent should not be granted. herein, both the applicants have claimed themselves to be indigent persons, but finding in relation to each of them has not been recorded. it has been manifested in plain words in the language of order xxxiii rule 1-a ibid that inquiry with regard to the applicant being indigent is to be conducted by the chief ministerial officer of the court or court by itself. the court would be at liberty to adopt the report of such officer. however, the mode of inquiry has not been defined in the code. the court may devise its own ways and means of inquiry. in such cases, if the court deems appropriate may call the halqa patwari to ascertain as to whether or not, the applicant is possessed of any property. if the applicant' happens to be an urbanite, such information can be had either from the municipal committee or the municipal corporation as the case may be. to say the least of it, it is for the court to see, how it can derive the necessary information for arriving at the conclusions, as to whether or not the applicant is indigent. as would be apparent on the face of the impugned order, without embarking upon the inquiry as envisaged by order xxxiii rule 1-a ibid, the trial court held merely on the basis of the affidavit of the applicant that she is indigent. this affidavit does not find corroboration from any source. the applicant may have examined the lambardar or sarpanch or any other respectable of her village in proof of her being indigent person.9. in view of the preceding discussion, it is held that the impugned order suffers from illegality as also material irregularity. sequelly, it is set aside with a direction to the learned trial court to decide the application afresh by observing the provisions of order xxxiii rule 1-a of the code of civil procedure.10. parties through their respective counsels are directed to put in their appearance before the learned trial court on 2.2.2010.