Madhya Pradesh High Court
Purshottam Yadav vs Adarsh Prathmik Grih Nirman ... on 25 January, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 25 th OF JANUARY, 2023
MISCELLANEOUS APPEAL No. 1059 of 2006
BETWEEN:-
PURSHOTTAM YADAV S/O DHANRAJ YADAV, AGED
ABOUT 24 YEARS, GWALTOLI HOSHANGABAD
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI DEEPAK SAHU - ADVOCATE)
AND
1. ADARSH PRATHMIK GRIH NIRMAN SAHKARI
SAN. OCCUPATION: THR.PRESIDENT
HOSHANGABAD (MADHYA PRADESH)
2. THE STATE OF M.P. HOSHANGABAD (MADHYA
PRADESH)
3. SMT. PREMBAIDHANRAJ YADAV GWALTOLI,
HOSHANGABAD (MADHYA PRADESH)3.
.....RESPONDENTS
(SHRI JITENDRA SHRIVASTAVA - PANEL LAWYER FOR THE
RESPONDENT NO.2)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
This miscellaneous appeal under Order 43 Rule 1(na) of the Code of
Civil Procedure, 1908, is filed by the appellant being aggrieved of order dated
28.02.2006 passed by the learned First Additional District Judge, Hoshangabad
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SAN
in Miscellaneous Civil case No.2/2004, whereby an application to consider
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Date: 2023.01.25 19:59:20 IST
appellant as an indigent person and allow him to sue his mother for selling 3.27
acres land contained in Khasra No.61, Patwari Halka No.26, Mauja - Kishanpur,
Tehsil and District Hoshangabad during his minority and seeking declaration to
the effect that said sale deed executed by his mother be declared to be null and
void and then, further seeking permission to sue the defendants as an indigent
person, has been rejected.
2. Shri Deepak Sahu, learned counsel for the appellant submits that
application under Order 33 Rule 1 is dismissed on the ground that compliance
of Order 33 Rules 2 and Rule 3 was not made and, therefore, that being a
curable defect, opportunity should have been afforded to the appellant to cure
that defect and application could not have been dismissed for non compliance
of the requirements of Order 33 Rule 2 and Order 33 Rule 3, CPC,
respectively.
3. Shri Deepak Sahu has placed reliance on the Division Bench decision of
Kerala High Court in Rosamma Vs. Chacko, 1998 0 Supreme (Ker) 534,
wherein it is held that:-
''If there is no reason to reject the application, after the enquiry
contemplated under Rule 1(a), it shall issue notice to the opposite
party, or the Government Pleader to adduce evidence. In this case,
there is nothing to show that the Court has issued notice to the
Government Pleader to file a report regarding the means of the
petitioner to pay court fee. Thus, the procedure adopted by the
Court in rejecting the application is not legal.''
4. After hearing Shri Deepak Sahu and going through the record, so also
the impugned order, it is evident that application under Order 33 Rule 1 is not
rejected due to technical non compliance of Rule 2 and Rule 3 of Order 33. It is
Signature Not Verified
evident from the impugned order itself that appellant was allowed to adduce
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.01.25 19:59:20 IST
evidence i.e. learned trial Court had over looked the stages of Rule 2 and Rule 3
of Order 33 and had resorted to procedure prescribed in Rule 6 of Order 33
and, thereafter, being not satisfied with the evidence led by the appellant, which
the Court in its discretion found to be shaky and unreliable for the reason that
on the one hand, appellant deposed that he earns Rs.10-15 per day by selling
newspaper and on the other hand, he deposed that he is working as a
Choukidar on the Taal of his landlord Har Prasad Yadav, but denied deriving
any benefit from the said vocation of watchman and then, saying that he spends
only Rs.10/- per day on his food, was found to be unreliable and, therefore,
taking this fact into consideration and also the evidence of applicant witness
No.2 Dhanraj, who happens to be father of the appellant into consideration,
where there is inconsistency as to whether appellant stays with his parents or
stays away, has found that appellant has not disclosed complete facts about his
source of income, as is the requirement of the Order 33. Therefore, instead of
rejecting an application under Order 33 Rule 5 for non compliance of the
requirements of Rule 2 and Rule 3 of Order 33, has rejected the application
after taking evidence on record and being not satisfied with the evidence to the
effect that it indicates nothing about the indigency of the appellant, impugned
order is passed, which does not call for interference as evidence given by the
appellant, has been rightly appreciated by the trial Court.
5. Judgment of Kerala High Court in Rosamma (supra) is not applicable
to the facts of the case, inasmuch as, when notice was issued to the appellant to
give evidence about his indigency then, it is evident that stage of Rule 1(a) was
already complied with and, thereafter, opportunity was given to the appellant to
lead evidence.
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6. Thus, on facts judgment being distinguishable and not applicable and
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Date: 2023.01.25 19:59:20 IST
even otherwise on the touchstone of the appreciation of evidence by the trial
Court, I do not find any illegality in the impugned order, calling for interference.
7. In view of above, appeal fails and is dismissed.
8. In case, appellant pays the desired Court fees as prescribed by law
within 30 days from today then, he may be permitted to continue with the suit.
(VIVEK AGARWAL)
JUDGE
pp
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.01.25 19:59:20 IST
