Mohd. Sadique vs Smt. Noorjahan
2021 Latest Caselaw 6547 MP

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           THE HIGH COURT OF MADHYA PRADESH
                      BENCH AT INDORE
          (S.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA)
                            Misc. Petition No.3479/2021
Petitioner:-                   Mohd. Sadique, S/o- Mohd. Sattar, Age: 38 years,
                               Occupation-Labour, R/o- House No.13, Ahir Mohalla,
                               Near Imabada, Baghana, Neemuch, (M.P.)
                                             Versus
Respondent No.1:-               Smt. Noorjahan W/o- Abdul Gafoor, Age-65 years,
                                Occupation-Housewife, R/o- House No.11, Ahir
                                Mohalla, Near Imabada, Baghana, Neemuch, (M.P.)
Respondent no.2:-              Abdul Sayed S/o Gafur Ji, Age-38 years, Occupation-
                               Service, R/o- House No.11, Ahir Mohalla, Kabir Baghana,
                               Neemuch, (M.P.)
Respondent No.3:-              Mohd. Yunus S/o Mohd. Sattar, Age-40 years, Occupation-
                               Business, R/o- House No.13, Ahir Mohalla, Near Imabada,
                               Baghana, Neemuch, (M.P.)
Respondent no.4:-              Mohd. Mehmood, S/o Mohd. Sattar, Age: 39 years
                               Occupation-Service, R/o- House No.13, Ahir Mohalla,
                               Near Imabada, Baghana, Neemuch, (M.P.)
Respondent No.5:-              Kamru Nisa W/o:- Shafik Ahmed, Age: 60 years,
                               Occupation-Housework, R/o- Manasa Hal Mukam Bagicha
                               Number 4 Neemuch Kant , Neemuch , (M.P.)
Respondent No.6:-              Badru Nisa, w/o-Yakub Kha, Age-58 years, Occupation-
                               Housework, R/o- Bhawani Mandi Teh And Dist Bhawani
                               Mandi , Rajasthan.
Respondent No.7:-              Najru Nisa W/o:- Anbar Beg
                               Age- 55 Years Occupation-Nothing
                               R/o- Green Park Colony, Dhar , Indore , (M.P.)
Respondent No.8:-               Nurun Nisa, W/o Anwar Beg, Age-55 years, Occupation-
                                Nothing, R/o- Nuri Colony Manasa Dist Neemuch (M.P.)
Respondent No.9:-               Sayda, W/o Irdish Kha, Age-53 years, Occupation-
                                Nothing, R/o-Rampura Hal Mukam Bagicha Number 4
                                Neemuch (M.P.)
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     • Shri Shankar Lalwani, learned counsel for the petitioner.
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                                               ORDER

Indore: Date: 20.10.2021:

The petitioner/plaintiff has filed the present petition under Article 2 1 of the Constitution of India against order dated 08.09.2021 whereby learned Civil Judge, has dismissed the application filed under Order 19 Rule 1 of the Code of Civil Procedure,1908.

2. The petitioner/plaintiff has filed the application under Order 33

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Rule 1 of the C.P.C. as an indigent person seeking a declaration of title, cancellation of sale deed dated 05.06.2011 permanent injunction. The learned Civil Judge has directed the Collector, Neemuch to submit a report in respect of properties, assets and income of the applicant. The Collector has directed the Tehsildar and the Tehsildar has made a spot inspection on 16.11.2019 and prepared a panchnama. The Tehsildar has directed Patwari to submit a report on the point of sufficient means in the form of movable or immovable property with the plaintiff to pay the court fees. The collector vide letter no.869 dated 05.12.2019 submitted a report on the fact that the petitioner is in possession of fridge, washing machine, scooty (MP-44-A-1772), motor cycle (MP-44-SA-4886) secondly he is a BPL card holder and his earning is Rs.6,000/- p.m. (72,000/- per annum). At the time of final argument on application under Order 33 Rule 1 of the C.P.C. the plaintiff filed an application under Order 19 Rule 1 of the C.P.C. calling the Tehsildar in the witness box for cross examination. According to the plaintiff, the Tehsildar has prepared a report at the instance of defendants and he has obtained a signature of the plaintiff on a blank papers and prepared an adverse report, therefore, his cross- examination is necessary. The learned Court has dismissed the application with the cost of Rs.1,000/-.

3. Shri Lalwani learned counsel submits that report stating incorrect has been given by the Tehsildar. The vehicle TVS Scooty is registered in the name one Kanhaiyalal has wrongly been shown in the name of the plaintiff and there are other materials which required to be explained by the Tehsildar in the witness box. The trial Court has wrongly rejected the application and if the same is not allowed injustice would be caused to the plaintiff.

Heard

6. The collector has filed the report on 05.12.2019 based on the spot inspection conducted by the Tehsildar on 16.11.2019. There is a signature of the plaintiff in the spot panchnama but now he is alleging that signature has been obtained on a blank paper. According to the plaintiff scooty has

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wrongly been shown as a property of the petitioner in order to value the property and income.

7. As of today the Court has only obtained a report but no final judgment has been passed. The plaintiff has already disclosed his property in the application . The court shall consider the declaration given by the plaintiff as well as the report submitted by the Collector while deciding the application filed under Order 33 Rule 1 of the C.P.C. The plaintiff has filed an application at the very belated stage that is at the time of final argument. Under Order 33 Rule 6 of the C.P.C. where the court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day for receiving such evidence as the applicant may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disprove thereof. Therefore, the burden is on the petitioner/plaintiff to prove his indigency by adducing evidence. It is for the government to give evidence in rebuttal. The procedure is prescribed for hearing the application for indigency under Order 33 Rule 7 of the C.P.C. The Court is bound to follow the said procedure. Parties are free to examine their evidence in support of their claim. Thereafter, the Court may either allow or refuse the applicant to sue as an indigent person after hearing the arguments. It is for the government to adduce the evidence in support of the report or not? The Court is bound to follow the procedure prescribed under Order 33 Rule 7 of the C.P.C. No direction is required.

Accordingly, the petition is disposed of.

( VIVEK RUSIA ) JUDGE Ajit

AJIT Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh,

KAMALAS 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6 cba241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A 1EE901C09EF29,

ANAN serialNumber=7F0BEE2D78BD57DA058F324744 1C87E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2021.10.25 18:49:54 +05'30'