RABINDER SINGH Vs. M MAHESHWAR RAO

JUDGEMENT

(1.) These two civil revision applications have been filed by the defendants of Title Suit No. 5 of 1996 challenging the order dated 18.2.1997 passed by the Sub Judge-I, at Jamshedpur in Misc. Case No. 2 of 1996. By the said impugned order, the learned court below refused to recall its order dated 23.1.1996 passed in title Suit No. 5 of 1996 allowing the plaintiff Opposite- Parties to sue the defendants as indigent persons.

(2.) The plaintiff Opposite-Parties filed the aforementioned title suit No. 5 of 1996 in the court of the Sub-Judge, Jamshedpur for the relief, inter alia, that it be declared that the defendant No. 2 has no right to alienate the suit property to a person other than the heirs of M.V. Ramaiya and for a declaration that the alienation, if any, made by the plaintiff is illegal and is liable to be set aside. The plaintiff also claimed a decree for permanent injunction restraining the defendants from making any construction in the Schedule B property. The plaintiff also filed an application under Order XXXI, (Note, it should be Order XXXIII--Editor), Rule 1, C.P.C and prayed that he may be allowed to file the suit as an indigent person and to admit the suit without paying any court fee. The learned court below after going through the aforesaid application passed an order on 23.1.1996 declaring the plaintiff as a pauper and indigent person having no means to pay the court fee and the suit was admitted and summons were issued to the defendant petitioners, After receipt of the summons, the defendants appeared in the suit and filed an application under Section XXXIII, (Note, it should be Order XXXIII--Editor), Rule 9 of the Code of Civil Procedure praying therein that the order dated 23.1.1996 may be recalled or set aside. The stand taken by the petitioners in the said application are that the learned court below passed the order allowing the plaintiff to sue as an indigent person without serving any notice to the defendants or to the Government Pleader, which was a mandatory requirement of law. The defendants further stated that the plaintiff has sufficient means to pay the court fee, inasmuch as the plaintiff is a television mechanic and has a shop at Sakchi Bazar, Jamshedpur, which he sold in December, 1995 and acquired two more such shops in Sakchi Bazar, which also, he disposed of in the first week of January, 1996 and has started repairing television sets and other electrical goods in the newly built up room on the top floor of the said building; thereby he earns more than Rs. 5000/- per month. It was further stated that the plaintiff has got costly TV set, ceiling fans and other costly furniture and he has also a scooter worth Rs. 50,000/- which the plaintiff has suppressed in the application under Order XXXIII, Rule 1 of the Code of Civil Procedure. The said application filed by the defendant petitioner was registered as Misc. Case No. 2 of 1996 and the plaintiff opposite-party filed a rejoinder to the aforesaid petition questioning the maintainability of the said application and denying the facts stated therein. The learned court below by the impugned order dated 18.2.1997 rejected the said application filed by the defendants. The learned court below held that the order dated 23.1.1996 was passed by his predecessor-in-office after recording the statement of the plaintiff and on perusal of the records of the case. The learned court below, therefore, rejected the application holding that the defendants ought to have moved the revisional court if they were aggrieved by order dated 23.1.1996.

(3.) I have heard Mrs. Jaya Roy, counsel for the petitioner and Mr. P.C. Roy, counsel for the Opposite-Parties. The learned Counsel for the petitioner has assailed the impugned order as being illegal and wholly without jurisdiction. The learned court submitted that admittedly, before passing the order declaring the plaintiff as an indigent person, no notice whatsoever was given to the defendants or to the Govt. Pleader, which was a mandatory requirement of law. The learned Counsel further submitted that the learned court below misdirected itself in law in holding that the application for recalling the order was not maintainable and the petitioners should have moved the revisional court. On the other hand, Mr. P.C. Roy, learned Counsel for the plaintiff Opposite-Parties in both the cases, submitted that this Court should not interfere with the order in exercise of revisional jurisdiction, inasmuch as by the said order, the defendants have not suffered any loss, or irreparable injury and there is no occasion of failure of justice. The learned Counsel relied on the decision in the case of JEL Church v. Samuel Santhi Kumar and a Bench decision of this Court in the case of 1996(2) PLJR 547.