GULZAR MOHD Vs. MUNIRA BEGUM

JUDGEMENT

(1.) RESPONDENT has been divorced by the petitioner. She sought leave to sue in forma -paupris for the recovery of Rs. 50,000 as MEHAR (Dower). After enquiry the trial court declared her to be an indigent person and permitted her to sue in forma -paupris. The petitioner feels aggrieved and has filed this revision petition challenging the order impugned dated: 23.09.1993 passed by the learned Distt. Judge, Poonch on the sole ground that the court below had not issued any/notice to the collector on respondents application which vitiated the whole proceedings and the consequential order. This was the only point argued before me by the learned counsel. Therefore, all that arises for consideration is, whether the notice to the collector is a pre -requisite in an application seeking leave to sue forma -paupris under order XXXIII C.P.C. or whether its non -compliance vitiates the order.

(2.) THERE is no provision in the amended 0.XXXIII C.P.C. which envisages a notice to the collector in an application seeking leave to sue in forma -paupris. Rule 6, however, provides that where the court does not reject the application on any of the grounds stated in rule 5. it shall fix a day ( of which at least 10) days clear notice shall be given to the opposite party and the Govt. pleader) for receiving such evidence as the applicant may adduce in proof of his pauperism. Under this rule a notice to the opposite party and the Govt. pleader is imperative but not the collector. Since it is not the case of the petitioner that no notice was issued to the Govt. pleader, as such there is no breach of provisions of rule 6 even. The petitioner has referred to and relied upon AIR 1927 Calcutta 464, AIR 1951 Kutch 96, AIR 1979 JKLR 522, 1980 KLJ 264, AIR 1954 Nagpur 252 and AIR 1977 A.P. 51. All these decisions are distinguishable on facts and law.

(3.) THE payment of court fees is primarily a matter between the state and the applicant though the defendant has a right to participate in the proceedings to establish that the applicant is not an indigent person and as such as a vital interest in the matter. But that by itself does not suggest that he will take upon himself role of the state and complain about the failure of the court to issue notice to the collector or for that matter the Govt. pleader. It may be desirable to issue such notice or ask It may be desirable to issue such notice or ask for the report from the collector. But non compliance thereof cannot certainly vitiate the proceedings or invalidate the order declaring a person as an indigent person, moreso where the opposite party has been put on the notice and afforded reasonable opportunity to participate in the proceedings and to dispute the claim of the applicant. A revision is a discretionary remedy and the High Court would interfere only in exceptional circumstances where the petitioner is able to show some material irregularity or failure of justice.