SHARP TOOLS MACHINERY DIVISION, A REGISTERED PARTNERSHIP FIRM Vs. ARC TEC SYSTEMS LTD., A REGD. PUBLIC LIMITED COMPANY

JUDGEMENT

(1.) THE First Respondent herein filed the Petition under Order 33, Rule 1 of C.P.C. seeking permission to sue as an indigent person and that Petition was numbered and the Revision Petitioner, who is the First Respondent in I.A. No. 356 of 2010, filed Application in I.A. No. 242 of 2012 to reject the Application on the ground that there is violation of mandatory provision of Order 33, Rule 2, C.P.C. as the First Respondent herein did not file the list of assets and therefore, the Application is liable to be rejected as per Order 33, Rule 5, C.P.C. Thereafter, the First Respondent herein filed I.A. No. 243 of 2012 to amend the Petition to include the list of assets and both the Applications were heard together and the Application filed by the Revision Petitioner to reject the Petition was dismissed and the Application filed by the First Respondent to amend the Petition was allowed and aggrieved by the same, these two Revisions are filed. It is submitted by the learned Counsel for the Revision Petitioner that as per Order 33, Rule 5, C.P.C., when the Application seeking permission to sue as an indigent person was not filed as per the mandate of Order 33, Rule 2, the Court below ought to have rejected the Application and it is not open to the Court to permit the Petitioner to amend the Petition at the later point of time and hence, the Court below committed serious error in rejecting the Petition filed by the Revision Petitioner and also erred in allowing the amendment. He also relied upon the Judgments reported in Fakir Mohebubshah, Ahmedabad v. Bai Chandbu and others, : AIR 1972 Guj. 270; Al. Ar. Alagappa Chettiar v. Pl. Ct. Palaniappa Chettiar, : AIR 1970 Mad. 269; Navudu Nuka Raju v. Rajani China Appanna and others, : AIR 1977 A.P. 15(1); Dilshada Bano v. Gh. Nabi, : AIR 1988 J&K 55; Doddananjappa and others v. The Sub -Registrar, Hoskote, Bangalore and others, : AIR 2003 Kar. 205; Chingakham Chaoba Singh v. Naorem Sajou Singh and another, : AIR 1964 Man 31; and P.V. Chandrasekaran and others v. Thirumalai Chit Funds and others, : AIR 1989 Mad. 30, in support of his contentions.

(2.) ON the other hand, the learned Counsel for the First Respondent Mr. Sankaran submitted that there is no illegality committed by the Court below in entertaining the Application filed by the First Respondent herein to sue as an indigent person and on the date of taking cognizance of the Application filed by the First Respondent, the list of assets were already filed and were available before the Court and on being satisfied with that, the Court numbered the Application and therefore, it cannot be stated that there is failure to comply with the provision under Order 33, Rule 2, C.P.C. Therefore, the Petition has been rejected. He further submitted that though the list of assets were furnished before numbering of the Application filed by the First Respondent, that was not incorporated in the Petition and for that purpose, the Application was filed and considering all these aspects, the Court below has rightly allowed the Application for amendment and dismissed the Petition filed by the Revision Petitioner for rejection of the Petition and there is no infirmity in the orders passed by the Court below. He also relied upon the Judgment reported in Madanmohan Lal Kapani v. Jhalman Singh and others, : AIR 1954 Cal. 89, in support of his contention.

(3.) ACCORDING to me, the date of filing of the Application cannot be taken into consideration for rejecting the Application under Order 33, Rule 5, C.P.C. for non -compliance of Order 33, Rule 2, C.P.C. and the date on which the Court takes cognizance of the Application, by numbering the Application has to be taken into consideration to decide whether the Petition has been filed complying with the provision of Order 33, Rule 2, C.P.C. or not. When the Court took cognizance of the Application on 30.10.2010, the First Respondent has already filed the list of assets along with Affidavit and that Application was received by the Court after condoning the delay and therefore, on the date of taking cognizance of the Application, the First Respondent has complied with Order 33, Rule 2, C.P.C. and hence the Petition is not liable to be rejected under Order 33, Rule 5, C.P.C. As a matter of fact in the Judgments reported in Madanmohan Lal Kapani v. Jhalman Singh and others, : AIR 1954 Cal. 89, it has been held that the Application for amendment to include certain items of property would lie and therefore, even in the case of omission to include some of the properties in the list of assets, it is open to the Petitioner namely the person who filed the Application to sue as indigent person to file such Application to include those properties by way of filing the Amendment Application and the only consideration is that there should not be any willful omission on the part of the person who files Application to sue as indigent person to defraud the Court by suppressing the state of affairs of his assets.