IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No.151 of 2010 (A/O) Shivji Maharaj deity installed Shiv Mandir and another ………..Appellants Versus Balak Giri @ Bal Giri and others …….Respondents Shri Kartikey Hari Gupta, learned counsel for the appellant. Dated: 17th June, 2010 Hon’ble V.K. Bist, J. Heard learned counsel for the appellant. Present appeal has been filed by the appellants against the judgment/order dated 01.04.2010 passed by learned Civil Judge (Sr. Div.), Haridwar in Misc. Suit no.31/2006, whereby the learned Civil Judge (Sr. Div.), Haridwar has dismissed the petitioner’s application 4 Ka under order XXXIII Rule 1 to 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.). Brief facts of the case, as stated in the writ petition, are that the plaintiff/ appellant no.2 instituted a case before the Court of Civil Judge (Sr. Div.), Haridwar against the defendants/ respondent nos.1, 3 & 4 for cancellation of sale deed dated 23.08.2006 (executed by defendant/ respondent no.1 in favour of defendants/respondent nos.3 & 4) which was registered as Misc. Suit no.31/2006, “ Shivji Maharaj & another Vs. Balak Giri & others”. In the suit the plaintiffs have come up with the case, interalia, that 2 Mata Bhram Giri was the owner in possession of the property in suit. Vide registered deed dated 23.10.1971, the property was donated to Mahant Chaman Giri who became the owner of the property in dispute. Mahant Chaman Giri constructed a Shiv Temple on the property and all property merged in the ownership of plaintiff/appellant no.1. The plaintiff/ appellant no.2 is looking after the affairs and interest of the property and managing all its assets. After the temple was established, all rights were vested upon plaintiff/appellant no.2 but the respondent nos.1 & 2 sold the property in question to respondent nos.3 & 4 vide sale deed dated 23.08.2002 for which they have no right. Along with the suit the appellant no.2 also moved an application (paper no.4-Ka) under Order XXXIII Rule 1 C.P.C. with the prayer to institute the suit as an indigent person. In this application the applicants have stated that the plaintiffs/appellants have no source of income to pay the requisite Court fee. They further stated that their interest are involved in the suit, therefore, they may be permitted to file the suit being an indigent person. Summons were issued to the respondents and status report of the plaintiff/appellant no.2 was called through D.G.C. who reported (paper no.108-C) that there is no property in the name of the plaintiff/appellant no.2 in District Hoshiyarpur, Punjab. The respondents did not file any objection to the said application. The learned Trial Court vide impugned order dated 01.04.2010 rejected the application paper no.4-Ka and ordered for consigning the same to record room. Being aggrieved by the order dated 01.04.2010 this appeal has been filed by the plaintiffs/appellants. I have heard Shri Kartikey Hari Gupta, learned counsel for the appellants and perused the record. Learned counsel for the appellants submitted that the Trial Court without framing an issue regarding the right of the petitioners to institute a suit has held that the plaintiff/appellant no.2 has no right to sue. He further stated that the learned Trial Court has given a prima-facie observation regarding the locus standi of plaintiff/ appellant no.2. He also submitted that the learned Trial Court ought to have given reasonable opportunity to the plaintiff/ appellant no.2 for payment of proper Court fee within a reasonable time as provided under Order 15A C.P.C. As far as the rejection of application filed by the applicant/ plaintiff no.2 under Order XXXIII Rule 1 to 3 of C.P.C. is concerned, the same has rightly been rejected, but the learned Trial Court has erred in observing that the plaintiff no.2 has no right to file the suit. After rejecting the said application, the Trial Court should have given opportunity to the applicant/ plaintiff no.2 to pay Court fee and should have given sometime for the same. Issues regarding locus standi or maintainability of suit can always be decided after filing of Court fee. Accordingly, the appeal is partly allowed. Order dated 01.04.2010 so far it rejected 4-ka application is 4 affirmed. Remaining part of the order by which record has been ordered to be consigned to record room is set aside. The plaintiffs/appellants are granted 3 weeks time to file requisite Court fee. (V.K. Bist, J.) Arpan 17.06.2010