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Prem Kumar & Ors vs Pamila on 3 October, 2018

CR No.7236 of 2016(OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CR No.7236 of 2016(OM)
Date of Decision: 03.10.2018

Prem Kumar and others ……Petitioners

Versus
Pamila and others …..Respondents

CORAM: HON’BLE MR. JUSTICE RAJ MOHAN SINGH

Present:Mr. Inveet Singh Pabla, Advocate
for the petitioners.

Mr. Sandeep Singh Ghangas, Advocate
for the respondent.

****

RAJ MOHAN SINGH, J.

[1]. Petitioners have preferred this revision petition against

the order dated 26.09.2016 passed by Civil Judge (Senior

Division), Panipat, whereby application under Order 33 CPC

filed by the plaintiff/respondent for allowing her to file the

recovery suit as an indigent person was allowed.

[2]. Plaintiff/respondent is the wife of petitioner No.1. She

filed a suit for recovery of Rs.1,01,91,824/- with interest @ 18%

per annum. Along with suit, an application under Order 33 CPC

for filing the suit as an indigent person was also filed. Along with

the application, schedule of properties owned and possessed by

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CR No.7236 of 2016(OM) 2

the plaintiff was attached along with the affidavit of the plaintiff.

[3]. Defendants No.1 to 3 filed objections to the application

under Order 33 CPC. Objections No.3 and 4 are to the following

effect:-

“3. That the plaintiff had sufficient amount in her bank
account No.129701000006550 with Indian Overseas
Bank Sector 11, HUDA, Panipat, besides she also
received an amount of Rs.4,40,000/- during May 2015
to September 2015 as maintenance pendente lite @
20,000/- per month from defendant No.1 and an
amount of Rs.1.50 lacs is to be paid by the defendant
No.1 on 31.10.2015. The plaintiff is also earning
handsome amount by doing tuition work and also owns
movable properties like gold and diamond jewelery
worth Rs.10 lacs.

4. That the plaintiff has filed a false and frivolous
application regarding her status as pauper/indigent
person and filed a false affidavit regarding her assets to
avoid payment of Court fee and also obtained a false
report of being indigent person in connivance with the
Tehsildar/Revenue Official, Panipal, which is not
tenable in the eyes of law and same is liable to be
brushed aside.”

[4]. Plaintiff controverted the objections filed by defendants

No.1 to 3 by way of filing reply to the objections.

[5]. Trial Court vide order dated 26.09.2016, dismissed the

objections filed by defendants No.1 to 3 on the application of

pauper under Order 33 CPC on the ground that though the

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defendants had mentioned that the plaintiff was in possession of

moveable property worth Rs.10 lacs, but the said plea was not

supported by any material, nor the objections were supported by

any affidavit. Report of the Collector was relied. The

maintenance awarded to the plaintiff was exempted from the

assessment of income.

[6]. Before passing the impugned order, a report of the

Collector regarding possession of moveable and immoveable

properties by the plaintiff was asked. As per report submitted by

the Collector, the plaintiff does not possess any immoveable or

moveable property in her name.

[7]. The application was allowed vide order dated

13.05.2015 by the trial Court. The aforesaid order was passed

at the initial stage and thereafter, notice of the suit was issued to

the defendants on filing process fee. Subsequently, on the

objections filed by defendants No.1 to 3, the impugned order

came to be passed. Order dated 13.05.2015 passed by the trial

Court has not been assailed in the present revision petition.

[8]. I have heard learned counsel for the parties.

[9]. Learned counsel for the petitioners submitted that in

view of Order 33 Rules 6 and 7 CPC, it was mandatory to issue

notice of the application to the petitioners as well as to the

Government Pleader. An opportunity of leading evidence was

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CR No.7236 of 2016(OM) 4

required to be afforded to the petitioners to disprove the

indigency of the plaintiff.

[10]. Learned counsel submitted that the plea raised on the

strength of Order 33 Rule 6 CPC is a legal plea and can be

raised at any stage. On the mandatory nature of compliance

under Order 33 Rules 6 and 7 CPC, learned counsel relied upon

Bishamber Lal and another Vs. Shanti Pershad Jaiswal and

others, 2013(1) RCR (Civil) 581.

[11]. In the instant case, the application was allowed at the

initial stage without issuing notice to the defendants vide order

dated 13.05.2015 on the basis of report of Collector regarding

possession of moveable and immoveable property by the

plaintiff.

[12]. Perusal of the objections would show that defendants

No.1 to 3 have not adverted to the aforesaid order dated

13.05.2015 in any manner, nor the objections in terms of Order

33 Rule 6 CPC have been taken in the objections. While

arguing the objections before the trial Court, no such argument

was raised. Perusal of para Nos.3 and 4 as reproduced in

earlier part of the order would show that no such objection was

pleaded, nor the same was adverted to during course of

arguments before the trial Court. Petitioners have not mentioned

the details of properties owned and possessed by the plaintiff in

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CR No.7236 of 2016(OM) 5

the objections before the trial Court.

[13]. There is no dispute with regard to the proposition as

held by the High Court. Compliance of Order 33 Rules 6 and 7

CPC is mandatory when such an issue is raised. Perusal of the

objections would negate such a plea ever raised by the

objectors/petitioners in the objections as well as during course

of arguments before the trial Court. No details of properties

were made available before the trial Court in the objections. The

existence of moveable and immoveable properties in the name

of the plaintiff is a question of fact. The ratio laid down in

Bishamber Lal and another’s case (supra) cannot be applied

on a question of fact which was neither pleaded by the

petitioners in the objections, nor argued before the trial Court at

the time of passing of impugned order. The objectors were in

the knowledge of the order dated 13.05.2015 passed by the trial

Court at the initial stage when the application of the plaintiff for

filing the suit as an indigent person was allowed on the basis of

report of the Collector. Report of the Collector was never

challenged, nor the order dated 13.05.2015 was ever

questioned by the defendants/objectors No.1 to 3. The

availability of assets (moveable or immoveable) with the plaintiff

is a fact to be countered or proved by the party asserting the

same against the plaintiff. Defendants/petitioners being the

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CR No.7236 of 2016(OM) 6

party denying the status of the plaintiff as that of indigent person

and were under legal obligation to plead and prove the solvent

status of the plaintiff.

[14]. The impugned order was passed on the objections filed

by the defendants/petitioners. Objections were totally wanting

on legal parameters and did not disclose the details of

properties owned and possessed by the plaintiff, nor the

ingredients of Order 33 CPC were pleaded.

[15]. Learned counsel for the respondent with reference to

Surjit Singh Vs. Surinder Kaur @ Saranjit Kaur and another,

2011(1) Law Herald (PH) 370 pleaded that application under

Order 33 Rules 1 and 2 CPC can be allowed on the basis of

report of Collector.

[16]. Having considered the submissions made by learned

counsel for parties, I find that the objections filed by the

petitioners were conspicuously silent with regard to moveable

and immoveable assets available with the plaintiff. No such plea

under Order 33 Rule 6 CPC was ever taken by the petitioners in

the objections, nor such plea was addressed before the trial

Court at the time of passing of the impugned order. Availability

of assets with the plaintiff is a question of fact. Without

disclosing such a plea even on a prior note, the objectors

cannot be allowed to argue the case on the strength of Order 33

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CR No.7236 of 2016(OM) 7

Rule 6 CPC without any basis. Order dated 13.05.2015 was

passed at the initial stage of the suit and the said order was

never adverted to by the petitioners while filing the objections

and despite the knowledge of the report of the Collector, the

said report was never assailed in any Forum. The only

submission with regard to issuance of notice in terms of Order

33 Rule 6 CPC cannot be appreciated, particularly in the light of

vague objections filed by the petitioners before the trial Court.

Litigation is between the husband and wife. The issue of

payment of Court fee is exclusively between the plaintiff and the

Court. Defendants in the suit have nothing much to object.

[17]. For the reasons recorded hereinabove, this revision

petition is found to be totally devoid of merits and the same is

accordingly dismissed.

October 03, 2018 (RAJ MOHAN SINGH)
Prince JUDGE

Whether reasoned/speaking Yes/No
Whether reportable Yes/No

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