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Raj Kumar & Another v/s Som Nath


Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- RAJ NATH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U70100DL1989PTC035128

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

    CMPMO No. 353 of 2017

    Decided On, 08 July 2019

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE AJAY MOHAN GOEL

    For the Petitioners: Shalini Thakur, Advocate. For the Respondent: Amit Kumar Dhumal, Advocate.



Judgment Text


Oral

1.By way of this petition, the petitioner has challenged order dated 5th May, 2017, passed by the Court of learned Civil Judge (Senior Division), Sirmaur District at Nahan in CMA No. 566 of 17 in Civil Suit Registration No. 56/2017 (Filing No. 137/2017), titled as Sh. Som Nath v. Shri Raj Kumar and another, whereby an application filed under Order 33 Rules 1 and 2 of the Code of Civil Procedure by the respondent herein for permission to file the suit for recovery as an indigent person, has been dismissed.

2. Brief facts necessary for the adjudication of the present petition are that respondent herein filed an application alongwith plaint under the provisions of Order 33 Rules 1 and 2 of the Code of Civil Procedure praying for grant of permission to the applicant/plaintiff for filing the Civil Suit for recovery of an amount of Rs. 5,00,000/( rupees five lacs only) as damages/compensation against the petitioners herein.

3. Vide order dated 5th May, 2017, said application has been allowed by the learned Court below by passing the following order:

"....The Court fee has been exempted by order dated 13.12.2016 by the District Legal Services Authority. Hence, the application under Order 33, Rule 1 & 2 stands deemed accepted.

Heard. Let def. be summoned for 05/06/17."

Said order stands assailed by the petitioners before this Court.

4. Learned counsel for the petitioners has argued that the impugned order is per se not sustainable in the eyes of law, as no opportunity was granted to the petitioners to contest the said application in terms of Rule 6 of Order 33 of the Code, as per which, it is mandatory for the learned Trial Court that in case it comes to the conclusion that there is no reason to reject the application on any of the grounds taken by the applicant therein, then notice has to be issued to the other party and the Government pleader for receiving such evidence, as the applicant may adduce in proof of his indigency and for hearing any evidence which may be adduced in disproof thereof. On these basis, learned counsel for the petitioners has argued that the impugned order is liable to be set aside.

5. On the other hand, learned counsel for the respondent has submitted that there is no perversity in the impugned order, because the order was passed by the learned Trial Court by placing reliance upon Eligibility Certificate issued by the District Legal Services Authority, declaring the present respondent to be a disabled person. On these basis, he has submitted that the petition has been filed just to prolong the suit filed by the respondent and the same be dismissed.

6. I have heard learned counsel for the parties and have also gone through the impugned order as well as other documents appended with the petition.

7. As per record, the application filed by the respondent herein under Order 33 Rules 1 and 2 of the Code was allowed by the learned Trial Court without any notice having been issued to the opposite party. This is a matter of record and this position has not been disputed by the learned counsel appearing for the respondent. In this view of the matter, what this Court has to adjudicate is as to whether the order which has been passed by the learned Court below without complying with the procedure, as contemplated under Rule 6 of Order 33 of the Code is sustainable in law or not?

8. Order 33 of the Code deals with suits by indigent persons. Rule 1 of Order 33 provides that suits may be instituted by indigent person subject to the provisions enumerated therein. Rule 1A of the said Rule provides for the manner in which inquiry has to be conducted into the means of an indigent person.

9. Rule 6 of Order 33 reads as under:

"6. Notice of day for receiving evidence of applicant's indigency 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 indigency, and for hearing any evidence which be adduced in disproof thereof."

10. A perusal of the said Rule demonstrates that where Court comes to the conclusion that apparently there is no reason to reject the application filed under Rule 1 of Order 33 of the Code, then the Court has to fix a date with at least 10 days clear notice to the opposite party and the Government pleader for receiving such evidence as the applicant may adduce in proof of his indigency and for hearing any evidence which may be adduced in disproof thereof.

11. Admittedly, in the present case, application which has been allowed by way of impugned order was filed under Order 33 Rules 1 and 2 of the Code. In these circumstances, in my considered view, once the Court came to the conclusion that there was no reason to reject the said application, then it ought to have followed the procedure as provided in Order 33, Rule 6 of the Code. In other words, such an application could not have been allowed by the learned Court below without issuing a clear notice to the opposite party as prescribed in Rule 6 of Order 33 of the Code.

12. At this stage, Mr. Amit Kumar Dhumal, learned counsel for the respondent points out that probably it was not necessary for the learned Court below to have followed this procedure, because it is not as if the respondent has been permitted to file the suit without payment of Court Fee on the ground that he was an indigent person, said concession was given to him on the ground that he is a physically disabled person and, thus, is entitled for the relief of nonpayment of Court Fee in terms of the provisions of the Himachal Pradesh Legal Services Authority Act, 1987.

13. In my considered view, even if that is the case, then also, because the application was filed by the applicant under the provisions of Order 33, the procedure as is mentioned in Rule 6 thereof, ought to have been followed. In other words, even if the concession given to the applicant/respondent was on the basis of the provisions of the Himachal Pradesh Legal Services Authority Act, 1987, then also it was incumbent upon the learned Trial Court to have heard the petitioners/defendants therein before passing any order.

14. In this view of the matter, this petition is allowed. Impugned order dated 5th May, 2017, passed by the Court of learned Civil Judge (Senior Division), Sirmaur District at N

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ahan in CMA No. 566 of 17 in Civil Suit Registration No. 56/2017 (Filing No. 137/2017), titled as Sh. Som Nath v. Shri Raj Kumar and another is set aside. Application filed by the respondent under Order 33 Rules 1 and 2 of the Code of Civil Procedure is revived with the direction that the said application shall be decided by the learned Trial Court afresh after following the procedure as prescribed in Rule 6 of Order 33 of the Code. The application be positively decided by the learned Trial Court after giving opportunity to put forth their respective case to the parties before it within a period of three months from today. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.
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