KAILASHO Vs. VIDYA AND OTHERS

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated 14th Nov., 1987 whereby application under Order XXXIII, rule 1 of the Code of Civil Procedure, for allowing the plaintiffs to file the suit as indigent persons was allowed.

(2.) The plaintiffs filed the suit for recovery of Rs. one lac by way of damages on account of malicious prosecution, defamation etc. They filed an application to allow them to sue as indigent persons as they were unable to pay the requisite Court fee. The said application was contested on behalf of the defendants. The trial Court after framing necessary issues and recording evidence, came to the conclusion that the said plaintiffs were indigent persons since they are not possessed of sufficient funds to pay Court fee required to be affixed on the plaint. Dissatisfied with the same, one of the defendants have filed the present petition in this Court.

(3.) Learned Counsel for the petitioner pointed out that under rule 6 of Order XXXIII of the Code of Civil Procedure, where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day of which at least ten days clear notice shall be given to the opposite party and the Government Pleader, for receiving such evidence as the applicant may adduce in proof of his indecency and for hearing any evidence which may be adduced in disproof thereof. According to the learned Counsel, this rule was not complied with as no notice was given to the Government Pleader. Thus, argued the learned counsel, the impugned order is liable to be set aside on this ground alone. He also challenged the impugned order on merits.