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Judgment
Sheel Nagu, Judge
This petition under Article 227 Constitution of India, assails the interlocutory order dated 13/04/2009 passed by III Additional District Judge, Shivpuri in MJC No. 12/2008, whereby an application under Order XXXIII Rule 1 CPC for permission to sue as indigent person preferred by the plaintiff/ respondent herein has been allowed. The learned counsel for petitioner primarily contends that once the similar application under Order XXXIII Rule 1 of CPC of the original plaintiff Ashok Shinde (husband of the respondent herein) had been disallowed by the trail court, there was no occasion or reason to have allowed the similar application preferred by widow of the original plaintiff. It is the further contention of learned counsel for petitioner that without calling for the record on the question of financial status of the plaintiff, the impugned order could not have been passed.
On the other hand learned counsel for respondent in support of the impugned order seeks dismissal of the petition and upholding of the impugned order by stating that the evidence collected by the trial court in support of the application under Order XXXIII Rule 1 of CPC filed by widow/plaintiff/L.Rs. of original plaintiff, was sufficient for the trial court to permit the plaintiff to sue as an indigent person, notwithstanding the similar request of original plaintiff having been rejected earlier.
Arguments of learned counsel for rival parties are heard and the record is perused.
A perusal of the impugned order indicates that the original plaintiff Late Ashok Shinde (husband of present plaintiff) had been denied permission to prosecute as indigent person and the said denial by the trial court was affirmed in M.A. No. 159/2007 which was dismissed by this court on 25/02/2009 thereby affirming the order of denial of permission to the original plaintiff to sue as indigent person.
The trial court has taken the above said factum into account while considering fresh application under Order XXXIII Rule 1 of CPC filed by the widow/ present plaintiff. Fresh evidence has been adduced in support of the said application filed by the widow/ plaintiff on the basis of which the court has found that widow plaintiff has no income to enable her to pay the court fee which is quantified as Rs. 60,360/-.
No doubt, the trial court has not called for the report form the revenue authorities as regards the financial status of widow plaintiff while conducting the enquiry into the means of indigent person, but it is noteworthy that calling for report from the revenue authorities is not mandatory under Order XXXIII of CPC. Order XXXIII of CPC empowers the courts to embark upon an independent inquiry by collecting evidence to find out as to whether the person applied is in possession of sufficient means to enable him to pay the prescribed court fees. Moreover, the provision of Rule I(a) of Order XXXIII of CPC provides for conduction of an enquiry into the said question of indigent by first conducting the enquiry by Chief Ministerial Officer of the court unless the court otherwise directs. The said provision clearly indicates that though it is mandatory upon a court to ensure conduction of enquiry into the question of indigent by the Chief Ministerial Officer of the Court but the said provision does not prevent to the court from taking upon itself the onus of conducting an enquiry by directing the parties to adduce evidence, as the court has adopted herein. Thus non-conduction of an enquiry by Chief Ministerial Officer as provided under the Rule 1(a) of Order XXXIII of CPC cannot per se vitiate the impugned order.
The reading of the impugned order further indicates that the sufficient material in shape of evidence has come on record indicating lack of means with the widow plaintiff to pay the court fees of Rs. 60,360/-.
The court while passing the impugned order does not seem to have rendered a finding as to why the present widow plaintiff is still entitled to sue as indigent when on earlier occasion the original plaintiff had been denied the said permission. The trial court has although held in paragraph No. 7 that earlier denial of permission to sue as an indigent will not disentitle the present widow plaintiff from applying for the same permission again, for the simple reason that financial means available to the original plaintiff cannot be treated to be the same as for the present widow plaintiff.
It is noteworthy to mention that the enquiry in regard to indigence has to be conducted in respect of every person independently and inquiry made in respect of husband cannot form the basis for concluding that widow of said husband after his death cannot sue as indigent as her husband who was original plaintiff has been denied the said permission.
The court has conducted an independent enquiry by collecting evidence and has reached findings which in the given facts and circumstances of the case could have very well arrived at.
It may be possible that in the attending facts and circumstances a different view can be taken but merely for that reason, this court cannot invoke it''s limited supervisory jurisdiction in favour of the petitioner. In view of the above, petitioner has failed to make out any case for interference under the supervisory jurisdiction under Article 227 of the Constitution of India as a result of which this petition deserves to be and is hereby dismissed. No order as to costs.