SHANKERBHAI C BARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Is the examination of the applicant under Rule 4 of Order 33 of the Code of Civil Procedure, 1908 ('the Code' for brief) an idle formality when neither the opponent nor the Government Pleader chooses to contest the application made by the applicant to sue as an indigent person ? This is the main question arising in this Appeal from Order challenging the legality and validity of the judgment and order passed by the learned Civil Judge (S.D.) at Bhuj in Civil Miscellaneous Application No. 40 of 1979.

(2.) The facts giving rise to this application may be summarised thus: The appellant herein was appointed in the establishment of respondent No. 1 herein as Assistant Purchase Officer by one order of 19/02/1973 on the monthly pay of Rs. 425.00. On 9/03/1976 he was on duty upto 1 p.m. and thereafter he submitted a report for half a day's casual leave as he was not feeling well. He extended his casual leave on medical ground upto 1 3/03/1976. He reported for duty but he was not allowed to resume under the pretext that his services came to be terminated by one order of 9/03/1976. He therefore filed one suit in the Court of the Civil Judge (J.D.) at Gandhidham challenging the order of his termination of service. His suit came to be transferred to the Court of the Civil Judge (J.D.) at Bhachau. It was re-numbered as Regular Civil Suit No. 49 of 1979. It was carried to its logical conclusion and it ended in his favour by the judgment and the decree passed on 27/02/1979 by the Civil Judge (J.D.) at Bhachau in Civil Suit No. 49 of 1979. It appears that the order of termination of 9/03/1976 was declared illegal and invalid. Thereafter he reported for duty but he was not allowed to resume. He therefore thought of filing one suit for recovery of Rs. 86,700.00 from the respondent herein pursuant to the judgment and the decree passed by the Civil Judge (J.D.) at Bhachau on 27/02/1979 in Civil Suit No. 49 of 1979. According to him, he had no funds to pay the Court-fees in that suit to the tune of Rs. 3,140.00. He therefore made one application to the Court of the Civil Judge (S.D.) at Bhuj for permission to sue him as an indigent person. His application came to be registered as Civil Miscellaneous Application No. 40 of 1979. It is the case of the present appellant that his statement was recorded on oath by the Civil Judge (J.D.) at Bhuj with respect to his application for permission to sue as an indigent person. It appears that thereafter the learned trial Judge caused to issue one notice to be served to the respondent herein and to the Government Pleader presumably under Rule 6 of Order 33 of the Code. Neither the respondent herein nor the Government Pleader filed any reply to contest the application. It appears that the applicant did not examine any witness nor did the respondent herein nor did the Government Pleader to disprove the case of the present appellant as set up in his application for permission to sue as an indigent person. The applicant himself also does not appear to have stepped into the witness box again after the notice contemplated under Order 33 Rule 6 of the Code was issued. Thereupon, the learned Civil Judge (S.D.) at Bhuj, by his judgment and order passed on 20/04/1981 in Civil Miscellaneous Application No. 40 of 1979, was pleased to reject the present appellant's application for permission to sue as an indigent person. The aggrieved applicant has thereupon preferred this Appeal from Order against the aforesaid judgment and order passed by the learned Civil Judge (S.D.) at Bhuj on 20/04/1981 in Civil Miscellaneous Application No. 40 of 1979.

(3.) Shri Ajmera for the appellant has submitted that it was not necessary for the present appellant to re-step into the witness box once his statement on oath with respect to the contents of the application was recorded under Order 33 Rule 4 of the Code. According to Shri Ajmera for the appellant, the learned Trial Judge was in error in not considering the evidence taken under Rule 4 of Order 33 of the Code. As against this, Shri Mehta for respondent No. 2 has submitted that, in view of the scheme of Rule 7 of Order 33 of the Code, the applicant has to prove that he is an indigent person despite his examination by the Court under Rule 4 of Order 33 of the Code. According to Shri Mehta for respondent No. 2, once the notice, contemplated under Rule 6 of Order 33 of the Code is issued, the matter is at large for the enquiry into indigency of the applicant. At the stage of examination of the applicant under Rule 4 of Order 33 of the Code, runs the submission of Shri Mehta for respondent No. 2, neither the opponent nor the Government Pleader has any opportunity to cross-examine the applicant as to his deposition in the light of the contents of his application. In this view of the matter, runs the submission of Shri Mehta for respondent No. 2, it is incumbent on the applicant to establish before the Trial Court that his case does not fall within the purview of Rule 5 of Order 33 of the Code or any ground for rejection mentioned therein.