YAGARAYANAGAR FUND LIMITED MADRAS Vs. D SIVAKAMI

JUDGEMENT

(1.) THE application is for setting aside the order dated 25.8.89 made by the Master in Application No. 1966/87 permitting the first respondent herein to file the suit as an indigent person.

(2.) THE Master, after considering the averments made in the plaint and the affidavit filed in support of the Application No. 1960/87 as well its the report of the Tahsildar, Kancheepuram, has allowed the application filed by the first respondent herein and granted leave to file the suit as in forma pauperis . THE only objection urged before me by the counsel for the applicant in his application is that the affidavit filed in support of the application does not disclose the cause of action and hence the application has to be dismissed. THE counsel further contended that Order 33, Rule 2 envisages the contents of application and as such the applicant ought to have furnished the detailed particulars in the affidavit irrespective of the averments made in the plaint. He also relied upon three judgments reported in Vijai Pratap Singh v. Dukh Haran Nath Singh (1964 SCJ 266), Jogesh Chandra v. Sri Iswur Praja Raj Jew Thakur (AIR 1981 Calcutta 259) and, SH. Nazir Ahmed v. Delhi Development Authority (AIR 1984 Delhi 245).

(3.) NORMALLY when the suit is filed by an indigent person, it will be filed as O.P. without separate affidavit. In the plaint itself, the applicant should have furnished her assets by way of separate schedule. That is the requirement of Order 33, Rule 2, which is extracted below: ?Contents of application:? Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits, a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.? Unfortunately in this case, the plaint, instead of filing as O.P. has been filed as O.S. and along with the plaint, separate application has been taken out for seeking permission to sue as an indigent person, even though the same relief has been asked for in the plaint itself. In the affidavit, the applicant therein gave the particulars with regard to her available assets in the schedule. When the affidavit has been filed along with the plaint, it cannot be treated separately. We cannot blame the applicant therein for adopting this procedure. It is only the counsel's mistake and it may be pertinent to note that the averments in the affidavit are relating only to her assets and not in respect of the cause of action or any main relief. Hence it should be taken as part of the plaint and when the plaint has revealed the cause of action and the affidavit has been separately filed, just to show the assets, it cannot he said that cause of action had not been disclosed in the affidavit and hence the same cannot be accepted. According to me, the objection raised by the applicant in this application is too technical.