VIMAL CHAND Vs. UTTAM AND ORS

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 30.1.2014 passed by the Additional District Judge, Sawaimadhopur, whereby the learned Judge has dismissed the petitioner's application under Order 33, Rule 9 CPC and has refused to treat the respondents-plaintiffs as non-indigent persons.

(2.) The brief facts of the case are that the respondents-plaintiffs had filed a suit under Order 33, Rule 1 CPC along with temporary injunction application, wherein they had claimed that since they are indigent persons, they are not in a position to pay the court fees. Upon this application, the learned Judge directed the Munsarim to inquire about the properties, which were owned by the respondents-plaintiffs and to submit his report. After receiving the said report, by order dated 24.8.2012, the learned Judge passed an order treating the respondents-plaintiffs as indigent persons. It issued summons to the petitioner-defendant. Subsequently, the petitioner-defendant filed an application under Order 33, Rule 9 CPC, wherein he challenged the fact that the respondents-plaintiffs could not be treated as indigent persons. After hearing both the parties, by order dated 30.1.2014, the learned Judge dismissed the petitioner's application under Order 33, Rule 9 CPC. Hence, this petition before this Court.

(3.) Mr. Kailash Chandra Sharma, the learned counsel for the petitioner has claimed that according to Order 33, Rule 2, in the application filed by the respondents- plaintiffs, they should have attached a schedule of movable and immovable property owned by them along with estimated value thereof and the said schedule should have been annexed with their application. However, in the present case, the respondents-plaintiffs did not file any such schedule. Secondly, the learned Judge is not justified in claiming that an application under Order 33, Rule 9 CPC could be moved only by the Government pleader and not by the defendant. In fact, such an application could certainly be moved by the petitioner-defendant. Therefore, the learned Judge has misapplied the law. Thirdly, sufficient evidence has been submitted by the petitioner in order to show that the respondents- plaintiffs have ample property for paying the court fees. Therefore, the learned Judge was not justified in dismissing the application filed by the petitioner- defendant under Order 33, Rule 9 CPC. Lastly, a person who comes with unclean hands cannot approach the court. Hence, the impugned order deserves to be set aside. In order to buttress his case, the learned counsel for the petitioner-defendant has relied on the case of Dr. D. Hemachandra Sagar and Anr. v. D. Prithviraj and Anr., 2004 AIR(Kar) 33.