PREMI DEVI Vs. STATE OF HARYANA

JUDGEMENT

(1.) For the reasons stated in the application, delay of 109 days in re filing the petition is condoned. The question for consideration in this petition is : Whether an application under Order 44, Rule 1, CPC for permitting the appellant to file appeal as an indigent person can be entertained and considered if it is filed subsequently and was not filed along with the memorandum of appeal?

(2.) In this case, the petitioner filed a suit for recovery of Rs. 5 lacs with interest as damages against the respondents on the ground that she was sterilized in the Government Hospital, Kurukshetra in the year 1991 and the said operation was conducted negligently and carelessly, due to which subsequently, the petitioner gave birth to a child in the year 1993. It has been stated that the said suit was filed by the petitioner as an indigent person. After recording evidence by both the parties, her suit was dismissed by the trial Court, while holding that there was no negligence on the part of the Doctor, who performed operation upon the petitioner and she is not entitled to get any compensation or damages.

(3.) Against the said judgment and decree, the petitioner filed an appeal before the first appellate Court without there being any application under Order 44, Rule 1, CPC for permitting her to file appeal as an indigent person. When the appeal was taken up for hearing and when it was pointed out that the appeal was being filed without there being proper Court fee the petitioner filed an application seeking permission to file the appeal as indigent person. The first appellate Court dismissed the said application while observing that since the application was filed subsequently by the petitioner, which should have been accompanied with the memorandum of appeal, therefore, the same is not maintainable. It has been further observed that normally, when an application for permission to file the appeal as an indigent person is rejected, time has to be granted to the appellant to pay the requisite Court-fee, but in the instant case, the appeal was initially instituted without application for permission to file the appeal as indigent person and the appeal was filed without paying requisite Court-fee and even without any application seeking time to pay the requisite Court-fee, therefore, the appeal has been rejected for want of Court-fee. Against that order the present petition has been filed.