Mali vs Akram Ganai and Others

Mohammad Yaqoob Mir, J.—The instant appeal is directed against the order passed by the Court of Second Additional District Judge,

Srinagar dated 01.12.2012, where-under application for restoration has been dismissed. On perusal of the records what emerges is that the trial

court has not appreciated the matter correctly. In a confused state of affairs application seeking restoration has been dismissed.

Appellant had filed an application under Order XXXIII Rule 1 C.P.C. for permission to institute the suit for declaration and possession in

indigent capacity. Same has been granted by the trial court vide order dated 28.04.2008, as a result thereof, application has been directed to be

treated and registered as plaint. On 27.05.2009 plaintiff had remained absent whereas counsel for the defendants 1 and 2 was present. The suit

has been dismissed in default.

Plaintiff had filed an application for restoration of the suit after the prescribe period of limitation, so had filed an application for condonation of

delay which appear to have been dismissed in default on 07.08.2012. On the same date i.e., 07.08.2012, application for restoration of the said

application has been filed which has been dismissed vide order impugned.

Trial court in the order has opined that the application for restoration is not maintainable in view of Order XXXIII Rule 3 of C.P.C. It appears

that the trial court has been under the impression that the main application seeking permission to file the suit in indigent capacity is yet to be granted.

Rule 3 of Order XXXIII of C.P.C. provides that an application seeking permission to file suit in indigent capacity has to be presented by the

applicant in person unless exempted from appearing in the court. That is how the trial court in the order has opined that the applicant has not been

exempted from appearing before the court, the applicant was under the obligation to move application before the Court for getting the order set

aside and on failure to do so, the application is not maintainable as per Order XXXIII Rule 3 C.P.C.

Rule 3 of Order XXXIII C.P.C. governs the application seeking permission to file a suit in indigent capacity. Rule 5 provides for rejection of the

application. Rule 8 provides procedure to be followed when application is granted i.e., same is to be treated and registered and has to be deemed

as plaint. Then suit shall proceed in all other respects as a suit instituted in the ordinary manner. Trial court without perusing the records has passed

the order impugned. In case trial court would have perused the records of the case, then such order would not have been passed. The order

recorded on 28.04.2008 by the trial court amply shows that the application to sue as indigent person has been granted and in accordance with

Rule 8 same has been directed to be registered and treated as plaint. Thereafter Rule 3 of Order 33 C.P.C. would not apply.

The order impugned dated 01.12.2012 suffers from lack of application of mind and is also based on wrong facts, therefore, is set aside. Trial

court shall decide the application seeking restoration within three months. The parties shall appear before the trial court on 28th June, 2014.

Record of the trial court be sent back along with copy of this order.