1 THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL MISC. APEAL NO.1822/2007. Smt.Nathi Devi & Others. VERSUS Ramesh Chand. 21.04.2008. HON'BLE MR.JUSTICE DALIP SINGH Mr.Satish Khandal, for the appellants. Mr.D.D.Khandelwal ] Mr.Satish Khandelwal ] for the respondent. ***** Heard learned counsel for the parties. This misc. appeal has been filed against the order passed by the learned trial court dated 25.11.2006 disposing of the application under Order 33 Rule 1 C.P.C. filed by the plaintiffs-appellants and against a separate order of even date whereby the learned trial court has consigned the suit to record. The submission of the learned counsel for the appellants is that while it is correct that the affidavit as required by Rule 2 of Order 33 C.P.C. was not filed but at the same time it was open for the learned trial court to have permitted the appellants to rectify the above irregularity as the objection to this effect was taken only during the course of hearing and at that time there was no opportunity for the appellants to have filed the aforesaid affidavit and the learned court below as the aforesaid ground dismissed the application as well as the suit. 2 It has further been submitted that the appellants in the application which was supported by an affidavit had stated that the appellants are not possessed by means to pay the court fee and in the affidavit which was filed during the course of the inquiry under Order 33 on 09.03.2006, the appellants had disclosed in para No.2 that the appellant is gainfully employed on a salary of Rs.800/- per month for preparing midday meal in the Government Primary School in Jaipur and apart from the above they have no other means of livelihood or any movable or immovable property. It is contended that on the above affidavit the appellants had also been cross examined and in case there was any further necessity for complying with the requirement of giving a schedule of the movable or immovable properties, as per Rule 2, that stood rectified by filing of the aforesaid affidavit dated 09.03.2006. It has further been submitted by the learned counsel for the appellants that the learned trial court has committed a serious error in not relying upon the decision of this court in the case of Maluram Hemraj Vs. Arjun Singh and Others reported in AIR 1972 Rajasthan 311 on the ground that the aforesaid judgment is prior in point of time to the amendment of Rule 2 of Order 33 carried out w.e.f. 01.02.1977 by the amending Act of 1976. It is submitted that so far as the provisions of Rule 2 are concerned, there is no material change requiring the filing of the schedule containing the list of movable or 3 immovable properties and the only amendment which was carried out to the Rule 2 was with regard to the substitution of the words “indigent person” for the term “pauper” which was used prior to the amending Act of 1976. Learned counsel for the respondent has not disputed the legal position so far as the amendment to Rule 2 of Order 33 C.P.C. is concerned and admits that so far as the interpretation given by the learned trial court, to the applicability of the judgment in the case of Maluram Hemraj (supra), is concerned, the same is contrary to the factual position. In view of the above, I am inclined to accept this appeal and remand the case to the learned trial court for decision of the application under Order 33 filed by the appellants afresh. Since it has been expressed by the learned counsel for the appellants that the appellants are ready to file a schedule to comply with the requirements of Rule 2 of Order 33 C.P.C., the learned trial court would afford an opportunity to the appellants to file the said schedule and it would be open for the respondent-defendant to lead evidence in rebuttal and/or cross examine the appellants on the above aspect. Consequently, the impugned order is set aside and the appeal is allowed. The case is remanded to the learned trial court for decision afresh on the application filed by the appellants. Having said so, it is, however, made clear that in case the application is 4 dismissed on merits by the learned trial court, the learned trial court shall as per the requirement of law contained in Rule 11 of Order 33 C.P.C. pass an order in terms of the same. Before parting with this case it is necessary to mention that as has happened in this case an application under Order 33 Rule 1 C.P.C. was filed without being accompanied by the schedule as required by Rule 2 of Order 33 C.P.C. Rule 5 of the Order 33 C.P.C. provides for consequences for non-compliance and though it has been held by this court as mentioned above that the non-filing of the schedule is an irregularity which can be cured subsequently on sufficient cause being shown. It is, therefore, necessary that the Presiding Officers of the court must go through the report made under Rule 32 of the General Rules (Civil), 1986 and the Munsarim or Reader of the Court while making such report must take care to ensure that Rule 32 is strictly complied with. Rule 32 of the General Rules (Civil), 1986 reads as follows:- “32.Duty of Munsarim or Reader in respect of plaints.- A Munsarim or Reader of a Civil Court appointed to receive plaints shall examine each plaint presented to him, and shall report thereon whether the provisions of the Code and the Court Fees Act have been observed and whether the claim is within the jurisdiction of the court, constitutes a cause of action, and has been presented within the period prescribed for the institution of such a suit. The Munsarim or Reader shall see that 5 the actual date of the presentation of the plaint is entered upon the impressed stamp and adhesive label, if any, below the date of purchase endorsed on them. On the back of all plaints the Munsarim or Reader, shall note:- (a) date and time of presentation of the plaint, (b) name of presenter, (c) classification of suit, and (d) court fee paid.” (emphasis supplied) It would thus be seen from the above that the Munsarim or Reader of the Court is required to see whether the provisions of the Code and the Court Fees Act have been complied with. In the instant case, the plaintiff has moved an application under Order 33 C.P.C. for being permitted to sue as an indigent person. It was the duty of the Munsarim/Reader examining the plaint and the application to have noted and made a report whether as per the provisions of the Code of Civil Procedure contained in Rule 2 of Order 33, the Schedule had been appended to the application or not and if there was a defect, the same should have been pointed out in the report by the Munsarim/Reader of the court, which could have been brought to the notice of the counsel or the party concerned for being rectified. If despite such opportunity having been given the defect is not removed the court would be entitled to proceed to deal with the application and the suit in accordance with the provisions contained subsequently under Order 6 33 Rule 5 C.P.C. The Presiding Officers of the court should take this matter into account and necessary instructions be issued in this behalf so that valuable time and expenses are not incurred as has happened in this case. The parties are directed to appear before the learned trial court on 19.05.2008. (DALIP SINGH),J. Solanki DS, Jr.P.A.