VIMALCHAND Vs. GYANMALA

JUDGEMENT

(1.) This is a revision under S.115 of the Civil P.C. against the order dated 6-11988, passed by the District Judge, Dewas in Misc. Civil Case No.14/84, allowing the application under O.33, R.1, C.P.C. of the non-applicant, allowing the non-applicant to sue as an indigent person and ordered the plaint filed by her to be treated as a plaint in the suit and the suit has to proceed in all other respects as a suit instituted in the ordinary manner, except for payment of court fees.

(2.) The main contention of Shri K.B. Joshi, learned counsel for the petitioners (non-applicants before the Trial Court) was that the report of the Collector in respect of pauperism was against the non-applicant, but the learned District Judge, without considering the said report and holding that no report is received, held on enquiry made by it, the non-applicant/plaintiff as an indigrent person. The Court-fees payable on the suit for partition is of Rs. 11,000/- on the share of the plaintiff/non-applicant, which the plaintiff has to receive if ultimately the decree is passed against the defendants. The non-applicant/plaintiff was having ornaments of about 40,000/- to Rs. 50,000/- and thus the non-applicant was possessed of sufficient means to enable her to pay fees, prescribed by law, for the plaint in the suit. Shri Joshi relied upon the judgment of this Court in Civil Revision No. 489/75 decided on 3-12-79 (Ramchandra v. Ku. Hemlata, (1980) 1 MPWN, Note No. 238). He also submitted for the purpose of maintainability of the revision that the view of the Patna High Court in AIR 1974 Patna 324 was dissented from by the Kerala High Court in AIR 1987 Kerala 249. His another contention is that in the C.P.C. by way of amendment in the year 1976, the provisions of O.33, R.1A were inserted. As such, when the report was called of the Collector, in the case there was no occasion to proceed further and the report was to be accepted which was against the non-applicant/plaintiff. Shri Joshi also had drawn my attention towards the proceedings dt. 8-12-86 and 4-8-87 of the trial Court, in respect of the calling of the report of the Collector, Dewas and Indore. Shri Joshi by reading O.33, R.1A of C.P.C. contends that when the report was called, there was no occasion to hold an independent enquiry or even when the enquiry was held, then the Court was bound to consider the report of the Collector, which was against the non-applicant/plaintiff.

(3.) Shri N.K. Dave, learned counsel appearing for the non-applicant/plaintiff submitted that the applicants before this Court have no right to challenge the order in view of the proviso of S.115, C.P.C. The grievance, if any is between the State and the plaintiff. The application submitted under O.33, R.1 was filed as long back as on 25-1-84 which took more than four years for its disposal. The non-applicant/plaintiff is being deprived of her share improperly and mesne profits to which she is entitled from the assets and properties left by her father, when the report of the Collector was not received, even then non-applicant/plaintiff herself moved an application about the report by filing a certified copy and submitted that the said report is not binding in the proceedings, as an independent enquiry has been held by the trial Court. He also took me through the statements recorded before trial Court and submitted that the order of trial Court is legal and proper and does not call for any interference.