Delhi High Court
Paridhi Aggarwal vs Ram Kumar Aggarwal & Ors on 26 October, 2018
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.P.A. 12/2016 & IAs No.9587/2016 (u/O XXXIX R-1&2 CPC) &
9588/2016 (u/O XXXIII CPC)
PARIDHI AGGARWAL ..... Petitioner
Through: Mr. Jaskaran Singh, Adv.
Versus
RAM KUMAR AGGARWAL & ORS ..... Respondents
Through: Mr. Vipul Goel, Adv. for R-1.
Mr. Sahil Kakkar, Adv. for R-3&4.
Mr. Anil Sharma, Adv. for R-5&6.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 26.10.2018
1. Adjournment is sought on behalf of the petitioner.
2. However, this petition to sue as an indigent person is pending for the
last nearly three years and cannot be repeatedly adjourned for arguments. I
have thus asked the counsel for the respondent No.1 and counsel for the
respondents No.3&4, whether the petitioner is an indigent person.
3. The counsel for the respondent No.1 has argued (i) that the petitioner
is studying in Symbiosis Law School, Noida, Uttar Pradesh; (ii) that the
petitioner is very affluent; (iii) that the petitioner is staying in Punjabi Bagh,
New Delhi; and, (iv) that the petitioner is very well to do.
4. Mr. Sahil Kakkar, counsel for respondents No.3&4 states that he is not
the main counsel and is unable to argue.
5. The counsel for the respondents No.5&6 states that the respondents
No.5&6 are the mother and brother of the petitioner and are not opposing the
petition.
6. I have enquired from the counsel for the respondent No.1, what is the
source of income of the petitioner.
7. The counsel for the respondent No.1 states that it is the duty of the
parents of the petitioner to provide money for court fee to the petitioner.
8. Merely because the relatives, even if parents, of indigent person are
well off, cannot, nevertheless lead to an inference of the indigent person
being in a position to afford the court fee payable. The indigent person
cannot be expected to ask for monies from others for the purposes of paying
the court fee.
9. The counsel for the respondent No.1 then states that the petitioner, by
this suit has sued her grandparents and Chacha and Chachi for partition.
10. Whether the suit is maintainable or not is to be seen only once
permission to sue as an indigent person is granted and the said factors cannot
have a role at the stage of deciding an application under Order XXXIII of the
Code of Civil Procedure, 1908 (CPC).
11. In this case, the Sub-Divisional Magistrate (SDM) concerned was
directed to submit a report about the financial status of the petitioner and a
report dated 22nd October, 2016 of SDM, Punjabi Bagh is on record. As per
the said report, all the expenses towards study, lodging and boarding of the
petitioner are being met by the stepfather of the petitioner and the petitioner
does not have any source of income or any property or any fixed deposit or
insurance policy in her name. It is also reported that the mother of the
petitioner has remarried after the death of the father of the petitioner and it is
the said stepfather of the petitioner, who is supporting the petitioner and her
mother.
12. The counsel for the respondent No.1 states that the said report is
totally biased.
13. However, the counsel for the respondent No.1 is also unable to tell the
source of income of the petitioner.
14. The counsel for the respondent No.1 then states that after the demise
of the father of the petitioner, there was a settlement between the mother of
the petitioner representing the petitioner as well as brother of the petitioner,
both of whom were minors at that time, and the respondents No.1&2.
Attention is drawn to Clauses (D) and (H) of the said Memorandum of
Family Settlement/Arrangement dated 20th November, 2005.
15. Clause (D) of the Memorandum of Family Settlement/Arrangement
records that the mother of the petitioner had taken away the jewellery items
received by her in her marriage, whether from her own parents or from her
in-laws i.e. respondents No.1&2 or gifted to her by her husband. The same
cannot constitute a source of income. As per Clause (H) of the Family
Settlement, the mother of the petitioner also received shares of different
companies in the name of the father of the petitioner as well as cash held by
the father of the petitioner. I may also mention Clause (I) of the Family
Settlement which says that neither the mother of the petitioner nor the
petitioner and her brother will have any claim on the properties of the
respondents No.1&2.
16. None of the aforesaid clauses also constitute a source of income to the
petitioner. It has been held in Suneal Mangal Vs. Prime Maxi Mall
Management (2013) 196 DLT 234, Krishan Krishan Kumar Vs. State 2013
SCC OnLine Del 4214 and Tulabhai Vs. State of M.P. 1997 SCC OnLine
MP 192 that even if an indigent person has a house, the same will not affect
the indigence, inasmuch as he/she cannot be expected to sell his/her house
and pay court fee out of the sale proceeds.
17. I am thus satisfied that the petitioner complies with the requirements
of Order XXXIII of the CPC.
18. IA No.9588/2016 under Order XXXIII of the CPC is thus allowed.
19. The petition filed as an indigent person be registered as a suit.
20. Issue summons of the suit and notice of the application for interim
relief to the defendants.
21. Summons/notice are accepted by the counsels for the defendant No.1
and counsel for defendants No.3&4.
22. Though the defendant No.2 is the wife of the defendant No.1 but the
counsel for the defendant No.1 states that a separate advocate is appearing
for defendant No.2 and who is not present today.
23. The defendant No.2 is also deemed to be served with the summons of
the suit and notice of the application for interim relief.
24. Written statement/replies be filed within thirty days.
25. Replication/rejoinder, if any be filed within thirty days thereafter.
26. The parties to file their affidavits of admission/denial of each other's
documents before the next date of hearing.
27. List for framing of issues, if any and for consideration of the
application for interim relief on 7th March, 2019.
RAJIV SAHAI ENDLAW, J.
OCTOBER 26, 2018/'bs'..
