Civil Revision No. 2086 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2086 of 2006 Date of decision: 09.10.2009 Shri Krishan Sharma ....Petitioner Versus The Haryana States Small Industries and Export Corporation Ltd. ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sandeep K. Sharma, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 21.11.2005 passed by the learned Additional District Judge, Rohtak, vide which the application moved by the petitioner under Orders 44 and 33 read with Section 151 of the Code of Civil Procedure, for permission to sue as an indigent person, stands declined. The plaintiff/petitioner filed a suit for recovery against the defendant/respondent, by claiming himself to be the indigent person. The application was allowed. The suit filed by the plaintiff/petitioner was partly decreed. The plaintiff/petitioner preferred an appeal against the judgment and decree passed by the learned trial Court, without moving an application to sue as an indigent person. The petitioner also did not affix the court fee on the appeal. The defendant/respondent moved an application for rejection Civil Revision No. 2086 of 2006 -2- of the appeal for want of court fee. The application moved by the defendant/respondent was allowed on 11.3.2005, and the plaintiff/petitioner was given time to make good the court fee. Instead of complying with the order, petitioner chose to file a review petition against the impugned order. The review petition was also dismissed on 3.8.2005. Thereafter, petitioner moved an application to sue as an indigent person. The application stands dismissed by way of impugned order, primarily on the ground, that the application was not bona fide and was, in fact, an attempt to over-reach the order passed by the Court on earlier occasion, directing the petitioner to affix the court fee. The learned Court was further of the view, that in pursuance to the decree passed by the civil Court, the petitioner had the sufficient funds to pay the court fee and, therefore, could not be said to be an indigent person, and dismissed the application. Learned counsel appearing on behalf of the petitioner challenges the impugned order primarily on the ground, that it was not open to the learned appellate Court to have rejected the application moved by the petitioner without holding an inquiry into it, and giving a finding whether the petitioner was an indigent person or not. In support of this contention, the learned counsel for the petitioner placed reliance on the decision of this Court in Civil Revision No. 2782 of 2004 titled Banto Devi Vs. State of Haryana and another decided on 27.2.2006, wherein this Court has been pleased to lay down as under: - Civil Revision No. 2086 of 2006 -3- “After hearing learned counsel for the parties, I am of the view that the impugned order passed by the learned first Appellate Court is not sustainable in law. Once the plaintiff was permitted to sue as an indigent person by the trial Court, it was open to the learned Appellate Court to order inquiry into the means of the appellant-plaintiff as to find out his capacity to affix the court fees. But without adopting such procedure, the learned first Appellate Court was not justified in law in declining permission to the appellant-plaintiff to sue as an indigent person. Mere fact that the petitioner herein moved an application for permission to file an appeal before the learned first Appellate Court as an indigent person after filing of appeal is only an irregularity and cannot be a ground for declining permission when the petitioner has satisfied the pre-requisite condition to sue as an indigent person.” On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. The facts of the case titled Banto Devi Vs. State of Haryana and another (supra) are not applicable to the present case, as the petitioner had not moved application to file an appeal as an indigent person, nor he had affixed the court fee. The application moved by the defendant/respondent for rejection of appeal for want of court fee was contested, but was decided against the petitioner. The petitioner failed to avail the opportunity granted to him, and instead of making good the court fee, he chose to file review petition, which was also dismissed. It was thereafter, that the application was moved. The learned Court rightly held that the petitioner, in view of the decree passed, which stood executed, had the means to pay the court fee and, therefore, could not be treated to be an indigent person. The learned appellate Court, therefore, had recorded a positive finding, that the Civil Revision No. 2086 of 2006 -4- petitioner is not an indigent person, therefore, no fault can be found with the impugned order in rejecting the application moved by the petitioner. The learned counsel for the petitioner, however, prays that in the interest of justice, the petitioner be now given some time to make good the court fee so that his appeal is heard on merits, as he has been prosecuting his remedies before the learned appellate Court and this Court bona fide on the legal advice obtained by him. This prayer deserves to be accepted. While dismissing the revision petition, the petitioner is granted one month's time from the date of receipt of the certified copy of this order, to make good the court fee. In case, the petitioner complies with this order and makes good the court fee, then the order of dismissal of appeal would be deemed to have been set aside and the learned appellate Court shall decide the appeal on merit. No costs. (Vinod K. Sharma) Judge October 09, 2009 R.S.