Ghulam Rasool Akhoon vs Ayat Rasool

Muzaffar Hussain Attar, J.—Order dated 6th of July, 2013 passed by learned Additional District Judge, Srinagar is called in question in this

petition.

A civil original suit has been instituted in the court of learned Additional District Judge, Srinagar by the respondents wherein they have prayed

for issuance of a decree against the petitioner, directing him to pay Rs. 52,000/- on account of maintenance to the respondents/plaintiffs.

An application under Order 7 Rule 11 CPC was filed by the present petitioner/defendant seeking rejection of the plaint on the ground that the

requisite court fee has not been paid and secondly that the parties have settled the issue of payment of maintenance in a petition u/s 488 Cr.P.C,

and for enhancement of maintenance amount the respondents could have filed an application u/s 489 Cr.P.C.

The learned trial Judge has rejected both the contentions and dismissed the application of the petitioner and has also exempted the respondents

from payment of court fee till the conclusion of the trial. The contention of availing remedy for enhancement u/s 489 Cr. P.C has also been rejected

by the learned trial Judge.

Learned counsel for the petitioner submitted that the trial court has no power to treat the suit as petition under Order XXXIII CPC. Learned

counsel further submitted that there is definite format in accordance to which petition under Order XXXIII CPC is to be filed. It is further

submitted that after conducting enquiry in accordance with law the trial Judge would either declare the respondents/plaintiffs as indigent persons

and permit them to institute the suit in forma-pauperis or would reject the claim of being indigent and make them liable to pay the court fee.

Learned counsel for the petitioner submitted that the parallel proceedings cannot be permitted to be instituted.

Mr. Manzoor Ahmad Dar, learned counsel for the plaintiff/respondents submitted that the respondents will file an application in accordance with

the mandate contained in Order XXXIII CPC. Mr. Dar fairly conceded that the trial Judge, without following the mandatory provision contained in

Order XXXIII CPC, could not permit the respondents/plaintiffs to institute the suit in the forma-pauperis.

Learned counsel for the respondents submitted that it is for the respondents/plaintiffs to choose the Forum for initiation of action against the

petitioner for seeking payment/enhancement of maintenance. Learned counsel further submitted that the respondents have chosen to institute a civil

suit and they are within their right to do the same.

Order XXXIII CPC deals with the suit to be instituted by indigent persons. It deals with the procedure for institution of suit in forma - pauperis.

The court is duty bound to follow the mandate contained in order XXXIII. Court has no inherent power to treat regular suit as suit in forma -

pauperis. When the provision is provided in the statute and procedure is also prescribed then normally inherent powers cannot be invoked by the

court.

The order of the trial court, to the extent it treated the regular suit as under Order XXXIII CPC, is illegal and cannot be sustained in law.

The respondents/plaintiffs, however, cannot be precluded from instituting the suit for seeking decree for payment of maintenance. Choice lies

with the party either to invoke provisions of 489 Cr. P.C or to institute a civil suit in the court of competent jurisdiction. In the present case there

are no parallel proceedings pending. It is the case of only choosing the forum for seeking a relief. The respondents/plaintiffs have chosen to institute

the suit, it cannot be said that same is not maintainable.

For the above stated reasons this petition is disposed of in the following manner:-

The order of the trial court which has treated the suit as petition under Order XXXIII CPC is set-aside. The respondents/plaintiffs are at liberty

to file proper application in accordance with the provisions contained in Order XXXIII CPC and the trial court shall deal with the same in

accordance with law.

The petitioners are also alternatively permitted to amend the suit or to file requisite pleadings to bring the pending suit within four corners of

Order XXXIII CPC. The application under Order 7 Rule 11 CPC, in the facts of this case, is held to be not maintainable. Respondents/plaintiffs

have still opportunity to seek permission of the court in terms of Order XXXIII CPC for institution of suit in forma-pauperis.

This petition along with connected IAs is, accordingly, disposed of.