IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3499 of 2007 Date of Decision : September 16, 2008 Pawan Kumar Gupta ....Petitioner Versus Sheela Bai and another .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. J.K. Goel, Advocate for the petitioner. None for respondent No. 1. T.P.S. MANN, J. By a common order, the present revision filed by Pawan Kumar Gupta and Civil Revision No. 3500 of 2007 filed by Surinder Kumar are being decided, as both of them arise out of identical suits filed by Sheela Bai-respondent. In her suit filed against Pawan Kumar Gupta, respondent Sheela Bai had sought a declaration that sale deed dated 18.6.1999 , was null and void, ab initio, illegal, ineffective, inoperative and against the mandatory rules and law and, therefore, not binding upon her rights, with consequential relief of permanent injunction. In the other suit filed by Sheela Bai against Surinder Kumar, she challenged the sale Civil Revision No. 3499 of 2007 -2- deed dated 21.7.1999. Both the suits were filed by Sheela Bai on the same day. During the pendency of the two suits and also on account of an order passed by the trial Court in another identical suit, requiring her to affix Court fee on ad valorem basis, Sheela Bai plaintiff felt that she would also be required to affix Court fee similarly as she had filed the present two suits by paying Court fee of Rs. 25/- by assessing the value of the suit at Rs. 200/-. Instead of paying such Court fee, Smt. Sheela Bai filed applications under Order XXXIII Rules 1 and 2 C.P.C. in both the suits for permission to sue as an indigent person. The applications were allowed by the learned trial Court vide orders dated 6.6.2007, which have been impugned in the two revision petitions. As was clear from the report of the Collector, Smt. Sheela Bai did not have any movable or immovable property in her name, nor she had any independent source of income. Therefore, she was justified in seeking permission of the Court to sue and prosecute both the civil suits as an indigent person. Learned counsel for Pawan Kumar Gupta in the present petition and Surinder Kumar in the connected revision submitted that the applications filed by Smt. Sheela Bai before the learned trial Court under Order XXXIII Rules 1 and 2 C.P.C. were not maintainable, as such an application could only be filed at the time of filing of the suit Civil Revision No. 3499 of 2007 -3- and not after passing of an order by the trial Court requiring her to pay ad valorem Court fee. Moreover, the applications in question had been filed by the counsel representing Smt. Sheela Bai and not by herself. With a view to appreciating the argument, one needs to go through the provisions of Order XXXIII Rules 1 to 5, which are as under:- “ORDER XXXIII SUITS BY INDIGENT PERSONS 1. Suits may be instituted by indigent person.- Subject to the following provisions, any suit may be instituted by an indigent person. Explanation I : A person is an indigent person,-- (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject matter of the suit. Explanation II : Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the Civil Revision No. 3499 of 2007 -4- decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III : Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. 1-A. Inquiry into the means of an indigent person.- Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the court, unless the court otherwise directs, and the court may adopt the report of such officer as its own finding or may itself make an inquiry into the question. 2. Contents of application.- Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. 3. Presentation of application.- Notwithstanding anything contained in these rules, the application shall be presented to the court by the applicant in person, unless he is exempted from appearing in court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented Civil Revision No. 3499 of 2007 -5- by him might have been examined had such party attended in person: Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs. 4. Examination of applicant.- (1) Where the application is in proper form and duly presented, the court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant. (2) If presented by agent, court may Order applicant to be examined by commission.- Where the application is presented by an agent, the court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken. 5. Rejection of application.- The court shall reject an application for permission to sue as an indigent person-- (a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or (b) where the applicant is not an indigent person, or (c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to Civil Revision No. 3499 of 2007 -6- apply for permission to sue as an indigent person: Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or (d) where his allegations do not show a cause of action, or (e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject matter, or (f) where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or (g) where any other person has entered into an agreement with him to finance the litigation.” The law provides that any suit may be instituted by an indigent person by establishing that he is not possessed of sufficient means to pay the fee prescribed by law for the plaint and once such an application is made, an enquiry is required to be held to find out as to whether or not a person is an indigent person. Rule 3 requires the presence of the plaintiff for the purposes of filing the application to sue as an indigent person and once the application is found to be in proper form and duly presented, the Court may examine the plaintiff or his Civil Revision No. 3499 of 2007 -7- agent regarding the merits of the claim and the property of the plaintiff. Under Rule 5 such an application can be rejected in case where it is not framed and presented in the manner prescribed or where the plaintiff is not an indigent person or, if, within two months before the presentation of the application, the plaintiff has disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person. In the present case, the necessity to file application for permission to sue as an indigent person arose to Sheela Bai-plaintiff when order was passed by the trial Court on 17.4.2001 requiring her to pay the ad valorem Court fee. As mentioned above, two suits had been filed on 6.9.2000. Therefore, it was not the stage of filing of the suit with which she was filing an application under Order XXXIII Rules 1 and 2 C.P.C. to sue as an indigent person. Moreover, application dated 29.3.2001 under Order XXIII Rules 1 and 2 C.P.C. was filed by Smt. Sheela Bai in the present case and dated 6.10.2003 in the connected case through her counsel, who had been representing her in both the suits. She had already appointed her counsel as her agent and, therefore, such an authorised agent was competent enough to file the application under Order XXXIII Rules 1 and 2 C.P.C. Similarly, such an agent stated everything about the merits of the claim and the property of Smt. Sheela Bai and once the report of the Collector had been received, learned trial Court came to a conclusion that Smt. Sheela Bai was an indigent person and, therefore, not required to affix the ad Civil Revision No. 3499 of 2007 -8- valorem Court fee. Moreover, even if it is taken for the sake of arguments that the provisions of Rules 1 to 5 under Order XXXIII had not been strictly complied with by Smt. Sheela Bai, the Court can resort to the provisions of Section 151 C.P.C., which enables the Court to pass such orders as may be necessary for the ends of justice. Once it was clear from the report of the Collector that Smt. Sheela Bai did not have any movable and immovable property in her name nor also she had any independent source of income, the Court was competent to grant permission to Smt. Sheela Bai to prosecute her two suits as an indigent person. No ground for interference is made out in the orders impugned in both the revisions. The two revisions are, accordingly, dismissed. ( T.P.S. MANN ) September 16, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO