MODEGUNTA RAMACHANDRAIAH v. NALABOLU MRUDHULA

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aforesaid property in favour of plaintiff and after his death on 13.07.2001 by virtue of Will, plaintiff became absolute owner and possessor. He used to pay cist and his name has also been entered in Adangal. One Venkata Subba Reddy, who is no more, based on fabricated documents created un-registered sale deed alleged to have been executed by Dabbara Subbanna Chowdary claiming to be the owner of the very same property and got the same regularized under Section 5(A) of the A.P. Rights in Land and Pattadar Passbook Act, 1989 (for short, "the Act") and basing on the same, he was also issued passbook. The entries made in revenue records in pursuance to aforesaid regularisation, came to be contested by plaintiff before M.R.O., R.D.O. and finally Joint Collector, vide proceedings No.(E3)/582/2013, dated 21.05.2016, relegating the parties to approach competent civil Court as there were serious title issues, however, the passbook and title deed issued in favour of late Venkata Subba Reddy were kept under abeyance. Meanwhile, Venkata Subba Reddy also filed O.S. No.309 of 2002 on the file of the 3^rdAdditional Junior Civil Judge's Court, Nellore, which came to be dismissed for default on 13.04.2016, to which neither plaintiff nor his father were parties to. As the legal heirs of late Venkata Subba Reddy tried to interfere with peaceful possession and enjoyment of plaintiff, he has instituted the aforesaid Suit. As per the statement of valuation of suit

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schedule property, the same was declared as Rs.44,76,15,300/- and for the purpose of relief of declaration of title and consequential grant of permanent injunction in terms of A.P. Court Fee and Suits Valuation Act, the same was valued at Rs.23,51,84,700/- on which a court fee of Rs.23,59,500/- was arrived at to be payable in terms of Section 24(d) of the said Act. The plaintiff filed I.A.No.406 of 2021 under Order 33 Rule 1 CPC seeking leave of the Court to permit him to file the Suit by declaring him as an indigent person (pauper) due to his inability to pay court fee. Learned Principal District Judge, having set ex parte the defendants, proceeded to hear I.A. and by order, dated 04.05.2023, rejected the same by holding that plaintiff has not disclosed or averred about the existence of other properties owned by him besides also not disclosing his personal details as to whether plaintiff was employee or pensioner and further not disclosed whether he had disposed any property within two months before presentation of such application. Assailing the said order, plaintiff preferred the present appeal.

4. As the Suit is yet to be numbered and I.A. filed under Order 33 Rule 1 CPC, seeking to declare the plaintiff as indigent person (pauper) for the purpose of maintaining the Suit, has been rejected, this Court feel that there is no need to serve notices to respondents, who are defendants 1 and 2 in the Suit.

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5. Heard Sri Nuthalapati Krishna Murthy, learned counsel for the appellant.

6. Learned counsel for the appellant contends that when the plaintiff in the I.A. has specifically pleaded that he has no means to pay court fee and sought to declare him as indigent person (pauper), the learned Principal District Judge instead of deciding as to whether plaintiff had sufficient means to pay the prescribed court fee, has delved into the factors, which are extraneous for the purpose of determining such question, therefore, the order suffers from severe perversity. He further contended that the reasoning of the learned Principal District Judge that the plaintiff has not disclosed the factum of he having other properties, non-mentioning of disposal of any property within two months before presentation of application and lastly, that whether he was an employee or pensioner, are all irrelevant and not germane for the purpose of determining such application. Even non- disclosure or failure to mention other assets owned by him would not warrant rejection of the application and at any rate the requirements enunciated under Rule 5 of Order 33 CPC are being mere procedural, non-furnishing of any such information would utmost be treated as defects in the pleading, which is curable but not fatal to maintain the application. In support of the same, reliance is placed on

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Sanganapalli Satyanarayana v. Venigalla Kotiratnam¹; Bommineni Lakshmi Devamma v. Bommineni Konappa²; and B.G.Andalu v. G.S.J. Misra³. He further contended that procedure is a handmade of justice, the object of which is to advance justice, but not deny the same and even if there are any lapses in the petition presented by the plaintiff, the learned Principal District Judge ought to have returned the same raising such objections allowing plaintiff to cure the same rather rejecting it on merits. Reliance is placed on Gorripati Veera Venkata Rao v. Ethalapaka Vanaja⁴ to buttress the above contention.

7. For better appreciation of the above contentions, it is apt to refer Order 33 Rules 2 and 5 CPC, which read as follows:

"Order XXXIII - Suits by indigent persons.-

(1) …..

(1A) …..

(2) Contents of application.—Every application for permission to sue as[indigent person] shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

(3)….

(4) …

(5) Rejection of application.—The Court shall reject an application for permission to sue as [an indigent person]—

(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or

(b) where the applicant is not [an indigent person], or

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(c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as [an indigent person]:

Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person.] or

(d) where his allegations do not show a cause of action, or

(e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter;

(f) where the allegations, made by the applicant in the application show that the suit would be barred by any law for the time being in force, or

(g) where any other person has entered into an agreement with him to finance the litigation."

8. The aforesaid provisions came to be considered and interpreted by a learned Single Judge of this Court in Sanganapalli Satyanarayana¹and held as follows:

"4. …..The structure of Order 33 Rule 2 shows that such a catastrophe may visit many an innocent and faultless person. Under Order 33 Rule 2, application to sue as an indigent person is required to show the plaint particulars, Property Particulars and their estimated value. In addition such an application is also required to be signed and verified in the manner prescribed for the signing and verification of pleadings. Broadly Order 33 Rule 2 may be taken to specify three requirements relating to plaint, schedule and signing and verification the failure to comply with any one of which would result by the operation of Order 33 Rule 5 in mandatory dismissal of the petitioner's application to sue as an indigent person. These are all requirements relating to pleadings. Defects in plaints, in schedules even in verifications are never treated by the Civil Procedure Code as incurable and fatal to the maintenance of claims except in the case of a poor man's application to sue as an indigent parson. It is this interpretation of Order 33 Rule 5 which has commended itself to a learned single Judge of this court in Nuka Raju v. Rajani China Appanna (1 supra). In that judgment the learned Judge held in categorical terms that motive for non-mentioning of the

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property in the schedule is irrelevant. Another learned Judge in State Bank of India. Secunderabad v. A. Kannabhiram (3) 1979 (2) ALT 28 (SN) held that failure to comply with the requirements of fie schedule should result in summary dismissal of the application. So did the Madras High Court in Al. Ar. Alagappa Chettiar v. Pl. Ct. Palaniappa Chettiar (4). AIR 1970 Madras 269 and the Patna High Court in Rajib Lochan Mahton Mothers v. Prafulla Kumar Ojha (5). AIR 1976 Patna 127.

5. The literal reading of Rule 5 of Order 33 would undoubtedly support these rulings. I cannot, therefore, find fault with the lower court for having followed the judgments of this court and the Madras High Court and dismissed the petitioner's application to sue as an indigent person for trivial reason that he did not mention his moveable property worth Rs. 400/- in the schedule to his application. The question is whether such a view of Order 33 Rule 5 of C.P.C. is correct.

6. It must be noted that on this interpretation Order 33 Rule 5 of Civil Procedure Code renders itself liable to be declared unconstitutional and invalid under Article 14 of the Constitution. A provision of law which permits the defects in a rich man's pleadings while rejecting a poor man's application without affording him an opportunity to amend his pleading must be held to have produced that difference of treatment based upon the criterian of mere economic status. While a rich litigant who can pay the court fees can cure, no doubt with the permission of the court, the defects that may be found in his pleadings, in the case of a poor litigant the court will be helpless to afford him any such opportunity to rectify the mistakes however genuine or bona fide they may be. There can be little doubt that this distinction between two suitors based on their economic status is wholly irrational and invidious. Mistakes can occur; failures can happen both in the pleadings of a rich man and a poor man. Law should treat both of them on an equal footing without reference to their status which is not relevant for the purpose of affording an opportunity to cure such defects. State is not selling judicial bonds of indulgence to the rich. Higher moral standards or higher technical requirements cannot constitutionally be prescribed for the poor litigants. Courts should not be prevented by law from inquiring into the question whether the person is really possessed of means to pay the court fees. The famous declaration Jackson Edwards v. California (6), 86 L. Ed. 119 (1941) that "Indigence' in itself is neither a source of rights nor a basis for denying them" may not strictly fit into the philosophy of a welfare state. Yet its general tenor that poverty should not be a ground for disqualification of enjoyment of rights is still

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valid. Edwards v. California (6 supra) rejects Justice Story's midieval theory that poverty leads to temptation and temptation often leads to vice. It follows that the interpretation put by Nuka Raju v. Rajani China Appanna (1 supra) and other cases on Or. 33 R. 5 cannot be constitutionally valid and should, in order to save Or. 33 R. 5 of Civil Procedure Code from the constitutional vice, be interpreted as directory only. Considering the requirement of Rule 2 it would not be right, in my opinion, to give mandatory effect to R. 5. Under the literal interpretation, an application becomes liable to be rejected not only because there is some defect in the Schedule of property but also for the reason that there was some defect in signing and verifying. An item might be omitted from being shown in the schedule of property without the slightest intention of gaining any advantage. In a case as in the present where the court fees payable is several times greater than the omitted items of property, it cannot be said that the omission would amount to suppression. The omission in such cases can be called accidental and unintentional. Yet giving the literal meaning to Rule 5 will result in the rejection of the application. Some times the omission may be unintentional. Even then the same disastrous effect will follow. In the result, the applicant will be made liable for consequences which he had never intended to produce. That would be the result of giving a literal meaning to that Rule as it was done in Nuka Raju v. Rajani China Appanna (1 supra). There the application to sue as an indigent person was rejected on the ground that life-interest was not shown in the schedule. The argument that life interest cannot be considered as providing a means for paying the court fee which is atleast plausible, was rejected as not right. The learned Judge followedthe judgment of the Madras High Court in Kuppuswami v. Varadappa (7) AIR 1943 Madras 11, and held that every applicant should approach the Court for leave to sue as a pauper with a full and complete disclosure of his movable and immovable property assets and that if he does not do it, the application is liable to be dismissed and that the motive for such non-disclosure is immaterial and that even if the undisclosed property is not sufficient to pay the court fees, it does not alter the situation. I do not find that this extreme view has been accepted by Venkatramaiah,J. in Ramakrishna Chetti v. Govindammal (8). AIR 1954 Madras 537. The learned Judge laid down that only intentional non-disclosure of assets belonging to the petitioner would be a ground for dismissing the petition. Basing upon that, the learned Judge accepted the explanation of the petitioner in that case for not disclosing his interest in the provident fund. That is also the view which has been taken by the Karnataka High Court in V. Krishna

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Bhat v. Ravishankar (9) AIR 1978 Karnataka 117. Although the learned Judge observed that motive for suppression is irrelevant and that utmost good faith is expected of persons who seek permission to sue as paupers, he ruled that it is not every case of omission that is fatal and that only omission indicative of lack of bonafides or good faith on the part of the applicants would be fatal. The learned Judge laid down that whether the conduct of a party lacks good faith and whether the omission to mention all the properties belonging to him is a deliberate act of suppression has to be ascertained from the facts of that particular case and the surrounding circumstances. The decision of the Rajasthan High Court in Maluram v. Arjun Singh (10). AIR 1972 Raj. 311, where it was held that if the omission is inadvertent or bonafide, the petition is not liable to be dismissed and that the petition can be permitted to be amended, also takes the same view. So does the judgment of the Allahabad High Court in State Of Punjab v. R.P Kapoor (11). AIR 1976 Allahabad 355. The Allahabad High Court held that a mere omission to State certain property is not sufficient ground to dispauper the plaintiff under Order 33, Rule 9(a), Civil Procedure Code. There in no advantage in construing these provisions in a mechanical way without making distinction between omission and suppression..."

9. Aforesaid view came to be approved by Division Bench of the erstwhile High Court of A.P. in Bommineni Lakshmi Devamma², by holding as follows:

"7. This Rule deals with the presentation of the application and states that it should be presented by the applicant or by an authorised agent if the applicant is exempted from appearing in the Court and if there are more plaintiffs than one, it can be presented by one of the plaintiffs. Rules 2 and 3 of O. 33 deal with the procedure. While R. 2 relates to pleadings, R. 3 speaks of presentation. Sub-rule (a) of R. 5 says that where it is not framed and presented in the manner prescribed by Rr. 2 and 3, the application to sue as an indigent person shall be rejected. In our view, sub-rule (a) of R. 5 has nothing to do with the merits of the case. It deals with the format and presentation of the application. It enables the Court to reject the application at the threshold if it does not conform to the requirements prescribed under Rr. 2 and 3. But it does not empower the rejection of the application on the ground that the particulars

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mentioned in the plaint are later found to be incorrect or for non-disclosure of the properties possessed by the applicant. If on the material it is found that the applicant possesses more property than what is stated in the petition and if that property is taken into account, he or she would not satisfy the definition of an indigent person, the application can be rejected under sub-rule (b) of R. 5 which says where the applicant is not an indigent person, the application shall be rejected. Therefore, the non-disclosure of properties is immaterial. The only question for consideration under O. 33 is whether the plaintiff has means to pay the Court-fees. This is a matter which pertains to merits. Omission to mention some property possessed by the applicant in the petition, whether deliberate or accidental is immaterial. When once the Court finds that the petitioner is possessed of other properties than what is mentioned in the petition and even taking into account the omitted property, the petitioner is not in a position to pay the Court-fee, the application has to be allowed. The purpose, the object, intendment and mission of O. 33 is to enable poor persons to approach Courts for redressal of their grievances, and that poverty should not come in the way of their getting justice from Courts. This is also evident from sub-rule (c) of R.

5. This sub-rule says that if a person disposed of any property fraudulently or in order to apply for permission to sue as an indigent person within two months next before the presentation of the application, the application shall be rejected. But it is qualified by a proviso which says that no application shall be rejected if even after the value of the property disposed of by the applicant is taken into account, the applicant is not in a position to pay the Court-fee. Thus even in a case where some property is disposed of with a fraudulent intention to enable himself to apply, the Court is bound to consider whether he would be entitled to sue as an indigent person by taking into account the properties disposed of. This clearly establishes that the object of O. 33 is to help indigent persons and not to punish them for omission or non-disclosure of certain facts.

8. As already referred to above, under O. 33, R. 2 an applicant to sue as an indigent person is required to show the property particulars and their estimated value. Under R. 3 the application is also required to be signed and verified in the manner prescribed for signing and verification of pleadings. The failure to comply with any one of these would result in rejection of the application under O. 33, R. 5. These requirements relate to pleadings. They cannot be treated as fatal. If the application does not conform to Rr. 2 and 3, an opportunity should be given to rectify the defects. Order 33, R. 5 as it relates to procedure it is only directory and not

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mandatory. The applicant cannot outright be rejected. Some mistakes may occur sometimes deliberate, sometimes accidental. In a welfare State, poverty should not come in the way of a person for enjoyment as right to sue that is why O. 33 enables an indigent person to enjoy that right. At the same time a beneficial provision like O. 33 cannot be permitted to be misused by unscrupulous litigants.

15. The Madras High Court in Chellammal

v. MuthulaxmiAmmal, (1945) 1 Mad LJ 53 : (AIR 1945 Mad 296), ruled that non-disclosure of some properties is fatal to the application. We are unable to subscribe to this view. Order 33, R. 5(a) does not say that omission to mention a particular property by itself entails the rejection of the application. For the defaulter, there is no way out excepting dismissal. This theory did not find favour with the learned single Judge of this Court in Satyanarayana v. Kotiratnam, (1987) 1 Andh LT 558. We are in complete agreement with the view taken by the learned single Judge. Such an interpretation would be supporting the "pound of flesh" theory. The defects in the pleadings can never be treated as incurable particularly in the case of the poor who want to sue as indigent persons. The object of O. 33 is not to punish, but to enable the person to sue as an indigent person. The suppression of any property in the petition should not per se entail dismissal. We accordingly hold that the decisions in Nuka Raju v. Rajani China Appanna, AIR 1977 AndhPra 15, and State Bank of India, Secunderabad v. A. Kannabhiram, (1979) 2 Andh LT 28 (Short Notes) do not represent the correct legal position."

10. Following the aforesaid view expressed by the Division Bench, yet another learned Single Judge in B.G.Andalu³held as follows:

"12. It is true that Rule 2 of Order 33 of CPC requires to furnish a schedule of any moveable or immoveable property belonging to the applicant with the estimated value thereof and Rule 5(a) provides for rejection of application where it is not framed in the manner prescribed by Rule 2. Similarly under Rule 7 the Court is empowered to refuse permission to sue as an indigent person on the ground of prohibition specified under Rule 5(c). However the omission to mention a particular property in the application by itself should not result in refusal of the application. I am of the view that it is the duty of the Court, on the basis of the facts and circumstances of the case

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on hand to examine whether such omission is bona fide or a deliberate act of suppression to take undue advantage of the beneficial provisions under Order 33 of CPC. The Court shall not refuse permission in every case on mere omission as a matter of rule. The Court has to enquire and record its finding whether the applicant has means to pay the prescribed Court- fee even if the property not disclosed is taken into account. Where the Court on appreciation of evidence on record comes to a conclusion that even if the property not disclosed in the application is taken into account, the applicant has no sufficient means to pay the prescribed Court-fee, there is no justification in refusing permission to sue as an indigent person."

11. A conspectus analysis of aforesaid authoritative pronouncements makes it clear that requirements enunciated under Rules 2 and 5 of Order 33 CPC are all requirements relating to pleadings, any defects in such pleadings are curable and not fatal to maintenance of the very claim of applicant to sue as an indigent person and further that satisfying the requirement of Rule 5 of Order

33 CPC has been held to be directory and not mandatory. Even non- disclosure of properties is held to be immaterial and what all to be considered was whether under Order 33 CPC, the plaintiff had means to pay the court fee which has to be considered on merits and mere omission to mention some of the properties possessed by the applicant in the petition, whether deliberate or accidental, would be immaterial. Even if the Court finds that the applicant was in possession of other properties, than what has been mentioned in the petition, enquiry that should be undertaken would be whether even

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considering the value of such omitted property, the applicant was not in a position to pay the court fee for the application to be allowed.

12. In Bommineni Lakshmi Devamma², the Division Bench was considering the order passed by the trial Court rejecting the request of petitioner therein to sue as an indigent person, on the ground that petitioner had not disclosed the factum of she having 1/8^thshare in her father's assets as required under Order 33 Rule 2 CPC. Upon analyzing the Scheme of Order 33, this Court held that mere failure to indicate in the application that the applicant had other property cannot be basis to refuse the application on merits for the purpose of deciding whether applicant be allowed to pursue the Suit as an indigent person. This view has been later followed on in B.G. Andalu³.

13. Coming to facts of the present case, the plaintiff in his application has specifically pleaded that he does not have sufficient means to pay the court fee and has furnished the statement of valuation of suit schedule property, as per which, the court fee was arrived as Rs.23,59,500/-. Ofcourse, the plaintiff has not disclosed as to his status and having any other properties. The learned Principal District Judge rejected the application mainly on three grounds i.e., (a) plaintiff has not revealed as to what are the other properties owned by him; (b) that he has not revealed about personal status, such as

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whether employee or pensioner; and lastly (c) that he has not revealed whether any property was disposed within two months before presentation of application. All these three grounds or reasons put against the plaintiff for rejecting the application, in considered opinion of this Court, are not substantive nor are requirements to be complied with in terms of Rules 2 and 3 of Order 33 CPC. The substantial requirements of pleadings as enumerated under Rule 2 i.e. schedule of immoveable property, estimated value being annexed and the same to be signed and verified have been complied with. As held in the aforesaid judgments, there is no requirement of plaintiff disclosing having any other assets or the other details including that of petitioner making the declaration that he has not disposed any assets before two months of presentation of application as mandatory requirement. Even if the aforesaid details are not disclosed, and later comes to the notice of the Court, it is bound to consider whether plaintiff would be entitled to sue as an indigent person by taking into account the properties if any disposed before two months of presentation of application. The learned Principal District Judge instead of proceeding to enquire and record finding whether plaintiff has means to pay the prescribed court fee for the purpose of deciding and granting permission to the plaintiff to sue as an indigent person, rather chose to

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reject the same on procedural aspects, which are also not germane for the purpose of deciding the said application.

14. Accordingly, the appeal is allowed setting aside the order, dated 04.05.2023, in I.A.No.406 of 2021 in un-numbered O.S. of 2023 on the file of the Principal District Judge, Nellore, SPSR Nellore District, and remanded the matter back to the trial Court for fresh consideration to determine the said application on merits keeping in view the observations made above, after granting opportunity of hearing to the plaintiff. No order as to costs.

As a sequel, miscellaneous petitions pending consideration, if any, in this case shall stand closed.

________________________

CHALLA GUNARANJAN, J

Date: 07.05.2025.

cs Note:

LR copy to be marked B/o

Dsr

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(per Hon'ble Sri Justice Ravi Nath Tilhari - concurring)

15. I have the advantage of seeing the judgment by my learned Brother (CGR,J). I am in agreement with the view taken and also the ultimate result that the appeal deserves to be allowed. However, I would like to add my view points as well.

16. The question is, whether the learned trial Court was right in rejecting the application under Order 33 Rule 5 CPC.

17. Order 33 Rules 2 to 5 CPC read as under:

"Order XXXIII of Civil Procedure Code (CPC) - Suits by Indigent Persons:

2. Contents of application.

Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits:

a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

3. Presentation of application.

Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as

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the party represented by him might have been examined had such party attended in person:

Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs.

4. Examination of applicant.

(1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.

(2) If presented agent, Court may order applicant to be examined by commission—Where the application is presented by an agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken.

5. Rejection of application.

The Court shall reject an application for permission to sue as an indigent person-

(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or

(b) where the applicant is not an indigent persons, or

(c) where he has, within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person:

Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken

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into account, the applicant would be entitled to sue as an indigent person, or

(d) where his allegations do not show a cause of action, or

(e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter, or

(f) where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or

(g) where any other person has entered into an agreement with him to finance the litigation."

18. Order 33 CPC deals with the suit which may be instituted by indigent persons. Rule 2 provides for contents of the application for permission to sue as an indigent person. According to this provision, every application shall contain the particulars required in regard to plaintiffs in suits; a schedule of any movable or immovable property belonging to the applicant with its estimated value to be annexed to the application. It is to be signed and verified in the manner prescribed for the signing and verification of pleadings. If the applicant's case is that he has no movable or immovable property belonging to him, then averment/pleading to that effect is to be made in the application itself, and in such a case, there would not be any requirement to annex a schedule of any movable or immovable property belonging to him.

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Rule 3 provides for presentation of application and the enquiry by the Court.

19. As per Rule 5, the Court shall reject an application for permission to sue as an indigent person; inter alia, (a) where it is not framed and presented in the manner prescribed by Rules 2 and 3; (b) where the applicant is not an indigent person; (c) where he has within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person. There are more clauses under Rule 5

(d) to (g). Rule 5 uses the expression 'shall'. So, the Court shall reject the application if any of the grounds of Rule 5 (a) to (g) exists. The proviso to Rule 5 provides that, no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person.

20. In Solomon Selvaraj v. Indirani Bhagawan Singh⁵the Hon'ble Apex Court held that the application under Order 33 Rule 1 CPC seeking permission to sue as indigent person can be rejected on the grounds mentioned in Order 33 Rule 5 CPC. The Hon'ble Apex Court also referred to the case of Kamu v. M. Manikandan⁶in which while considering Order 33 Rule 5 CPC, it was observed and held that the

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application for permission to sue as an indigent person has to be rejected and could not be allowed if the allegations in the plaint could not show any cause of action. That was under clause (d) of Rule 5.

21. It is apt to refer paragraphs No.11, 16 and 17 of Solomon Selvaraj (supra) as under:

"11. An application to sue as indigent persons would be under Order 33 Rule 1CPC. Order 33 Rule 1-ACPC provides for inquiry into the means of an indigent person. Order 33 Rule 2CPC provides contents of application. Order 33 Rule 4CPC provides for examination of the applicant in case the application is in proper form and duly presented. Order 33 Rule 5CPC provides the circumstances under which the application for permission to sue as an indigent person can be rejected.

16. Thus, from the scheme of Order 33CPC, it emerges that the application under Order 33 Rule 1CPC seeking permission to sue as indigent person can be rejected on the grounds mentioned in Order 33 Rule 5CPC. It includes that the allegations in the application would not show cause of action … or that the allegations made by the applicant in the applications show that the suit would be barred by law for the time being in force [Order 33 Rules 5(d) & (f)CPC].

17. An identical question came to be considered by this Court in Kamu [Kamu v. M. Manikandan, (1998) 8 SCC 522] . While considering Order 33 Rule 5CPC, it is observed and held that the application for permission to sue as an indigent person

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has to be rejected and could not be allowed if the allegations in the plaint could not show any cause of action."

22. In the present case, the application has been rejected recording as follows:

"The petition averments do not reveal that apart from the suit schedule property what are the properties that were having by the petitioner to find out whether he is entitled to declare him as indigent person or not and so also even the petition averments do not believe that except the plaint schedule property he has no other properties and even affidavit averments do not reveal that whether he is employee or not or whether he is pensioner or not to find out whether he is an indigent person or not and so also the petition averments do not reveal that within two months next before presentation of application, he did not dispose of any property, and without establishing the above particulars, the petitioners could not be declared as indigent person, hence the petition was rejected."

23. It is settled in law that the procedure is a handmade of justice. In Sugandhi v. P. Rajkumar⁷ the Hon'ble Apex Court reiterated that the procedure is a handmade of justice. Procedural and technical hurdles shall not be allowed to come in the way of the Court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, Courts must lean towards

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doing substantial justice rather than relying upon procedural and technical violation. In Abraham Patani v. State of Maharashtra⁸the Hon'ble Apex Court observed and held that when dealing with matters of procedure the old adage of procedural laws being the handmaid of justice must be kept in mind. It was observed that procedural rules must not be allowed to defeat the basic purpose of a statute or hamper the pursuit of justice.

24. So, if there is non-compliance in framing the application or presentation, with the manner as prescribed under Rules 2 and 3, or if there is some information lacking which the Court considers, should be there, such as, whether the applicant, has within two months next before the presentation of the application, disposed of any property fraudulently or not, in order to be able to seek permission to sue as an indigent person, or even if such property was disposed of within period of two months next before presentation of the application, whether such property if taken into account, still would entitle the applicant to sue as an indigent person, the Court should, instead of rejecting the application outright for want of any such information, afford opportunity to the applicant to furnish such information so as to enable the Court to take appropriate decision on the point of determination to grant permission to the applicant to sue, as an indigent person or not.

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25. I am of the view that instead of rejecting the application on the aforesaid grounds, the learned Court ought to have granted the opportunity to the applicant to furnish such information by filing appropriate application and the affidavit so as to enable the Court to determine the application in the light of Rule 5 of Order 33 CPC.

26. I am of the view that it cannot be that the learned trial Court cannot see beyond Rule 1 with respect to furnishing of the requisite information, in the application. Even if the application is in consonance with Rule 1, but it does not contain the information for want of which in view of Rule 5 Clauses (a) to (g) on those grounds, on which the application can be rejected, for which the Court is under duty to reject, the Court would be justified in calling for such additional information is under Rule 5. All the Rules are to be read in harmony and the compliance with Rule 5 cannot be dispensed even where applicant complies with Rules 2 and 3. I am of the further view that even if the application is as per Rules 1, 2 & 3, it can still be rejected if any of the other clauses under Rule 5 is attracted, but not without granting

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I.A.No.406 of 2021 in unnumbered suit of 2023, after granting an opportunity of hearing to the plaintiff, and also keeping in view the observations and direction as contained in that part of the judgment.

____________________

RAVI NATH TILHARI, J

Date: 07.05.2025.

Dsr Note:

LR copy to be marked B/o

Dsr