SURESH YADAV Vs. SANJAY KUMAR SHARMA

JUDGEMENT

(1.) THIS petition under Art. 227 of the Constitution of India has been filed by the petitioner -defendant (hereinafter 'the defendant') against the order dt. 18.09.2009, passed by the Additional District Judge (Fast Track) No. 2, Bharatpur, whereby the learned Judge has held that prima facie the respondent -plaintiffs' (hereinafter 'the plaintiffs') application under Order 33 Rule 1 CPC to prosecute the suit as pauper was maintainable and that objections raised by the defendant as to the indigence of the plaintiffs would be addressed subsequent to the enquiry in that regard and a proper order thereupon passed finally only thereafter. So holding the learned trial Court has directed the Reader of the Court to make an enquiry on the facts detailed in the application under Order 33 Rule 1 CPC and present the Inquiry Report before it by the next date. Mr. Saransh Saini, appearing for the defendant has submitted that the application under Order 33 Rule 1 CPC filed by the plaintiffs ought not to have been entertained at all by the trial Court, first for the reason that this Court in SBCWP No. 7984/2205 decided on 27.04.2006 had directed that in the event the preliminary issue of the short payment of Court fee on the valuation of the suit was decided against the plaintiffs and the plaintiffs thereafter failed to comply and deposit the deficit Court fee, the suit for damages as laid by the plaintiffs would be addressed with reference to the provisions of Order 7 Rule 11 CPC. Counsel submits that following the remand by the learned Single Judge under his order dt. 27.04.2006, the issue of Court fee was tried as a preliminary issue whereupon the learned trial Court came to a conclusion that the Court fee paid on the valuation of the suit was inadequate and in fact short paid to an extent of Rs. 25,065/ -. It is submitted that in spite of the determination by the trial Court under its order dt. 19.03.2007 of the Court fee being short paid, the plaintiffs did not deposit the deficit Court fee and instead moved an application under Order 33 Rule 1 CPC to circumvent the order passed by this Court on 27.04.2006. Counsel submits that the application under Order 33 Rule 1 CPC as aforesaid was thus not bona fide and contrary to the spirit of the order dt. 27.04.2006, passed by this Court and therefore the application ought not to have been entertained. He further submits that even otherwise the application under Order 33 Rule 1 CPC was not verified as a plaint nor supported by an affidavit as mandated by Order 4 Rule 1 read with Order 6 Rule 14 & 15 CPC. Counsel submits that consequently the application under Order 33 Rule 1 CPC ought not to have been treated as duly instituted and cognizance thereof could not have been taken by the trial Court under its order dt. 18.09.2009 wherein a direction was issued to the Reader of the Court to make an enquiry as to the plaintiffs' indigence.

(2.) MR . R.K. Mathur, Sr. Advocate with Mr. Aditya Mathur, appearing for the plaintiffs, submits that merely because this Court in SBCWP No. 7984/2005 vide its order dt. 27.04.2006 directed the determination of question of the Court fee payable as a preliminary issue and merely because thereupon the learned trial Court had under its order dt. 19.03.2007 found that the Court fee was short paid to an extent of Rs. 25,065/ -, it did not exclude or takeaway the plaintiffs' statutory right to move an application under Order 33 Rule 1 CPC seeking to prosecute the suit as an indigent person. Reference in this regard has been made to the judgment of the Division Bench of the Hon'ble Patna High Court in the case of Makundi Mandal & Ors. vs. Haridar & Ors., : AIR 1969 PATNA 267, wherein the Hon'ble Patna High Court has held that even if a suit has been registered as an ordinary suit in the first instance and the plaintiff does not pay deficit Court fee found and subsequently applies for permission to continue the suit as a pauper, the said application under Order 33 Rule 1 CPC should not be rejected merely on the ground that the suit was initially registered as an ordinary suit. It is submitted that in this view of the matter, the contention of the counsel for the defendant with regard to the purported mala fide nature of the application under Order 33 Rule 1 CPC subsequent to the order dt. 19.03.2007 passed by the trial Court finding that the suit had been filed on deficit Court fee, deserves to be rejected. Counsel further submits that the provisions of Order 4 Rule 1 read with Rule 14 & 15 of Order 6 CPC merely mandate that a suit to be registered must be duly supported by an affidavit and verified in accordance with law. Attention of this Court has been drawn to page 50 of the paper book in the present petition wherein an affidavit duly verified by the plaintiffs in respect of the application under Order 33 Rule 1 CPC has been filed and a part of the petitioner's documents in support of this petition. In this factual situation, counsel for the plaintiffs has submitted that the essential requirement for the registration of a suit as mandated under Order 4 Rule 1 read with Order 6 Rule 14 & 15 CPC stands fulfilled. He submits that as far as the contention of the counsel for the defendant that the schedule of moveable and immoveable property with their respective valuation was not filed along with the application under Order 33 Rule 1 CPC, that aspect of the matter can be considered by the trial Court where the application under Order 33 Rule 1 CPC is still pending.

(3.) CONSEQUENTLY , I would dismiss this writ petition with the direction to the learned trial Court to adjudicate the application under Order 33 Rule 1 CPC pending before it strictly in accordance with law within a period of four weeks from the presentation of a certified copy of this Order. The petition is accordingly dismissed. Stay application also stands dismissed.