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Dyal Kaur Vs. Ujagar Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 535 of 1970
Judge
Reported inAIR1972P& H18
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 33, Rules 7 and 9
AppellantDyal Kaur
RespondentUjagar Singh and anr.
Excerpt:
.....by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1 and 2, to show that she was a poor lady possessing nothing and was unable to pay the..........to allow the petitioner to sue as a pauper. 2. dayal kaur instituted a suit against her husband ujagar singh for the recovery of rs.3,000/- on the ground that she needed this amount for the marriage of her daughter pal kaur. along with the plaint, she filed an application that as she was not possessed of sufficient means to pay the requisite court-fee, she might be permitted to file the suit in forma pauperis. it appears that previously this application was allowed, but subsequently the record containing the evidence and the order to that effect was lost and could not be traced. this would be clear from the fact that on 13th august, 1969, ujagar singh moved an application under o. 33, r. 9, code of civil procedure, for dispaupering the plaintiff. the impugned order dated 25th march,.....
Judgment:
ORDER

1. This is a plaintiff's revision petition filed under S. 115, Code of Civil Procedure, against the order of the Court below refusing to allow the petitioner to sue as a pauper.

2. Dayal Kaur instituted a suit against her husband Ujagar Singh for the recovery of Rs.3,000/- on the ground that she needed this amount for the marriage of her daughter Pal Kaur. Along with the plaint, she filed an application that as she was not possessed of sufficient means to pay the requisite court-fee, she might be permitted to file the suit in forma pauperis. It appears that previously this application was allowed, but subsequently the record containing the evidence and the order to that effect was lost and could not be traced. This would be clear from the fact that on 13th August, 1969, Ujagar Singh moved an application under O. 33, R. 9, Code of Civil Procedure, for dispaupering the plaintiff. The impugned order dated 25th March, 1970 had been passed on that application. It was stated therein that the plaintiff had filed a suit against him in forma pauperis and she had been declared a pauper. She had recovered about Rs.600/- on account of maintenance from him and now she was in a position to pay the court-fee. It was, therefore, prayed that she be dispaupered and asked to pay the court-fee.

3. The petitioner had produced two witnesses Ranjit Singh and Surjan Singh. A. Ws. 1 and 2, to show that she was a poor lady possessing nothing and was unable to pay the court-fee. She herself also appeared as A. W. 3 and deposed that neither she nor her daughter aged 21 years, had any source of income. Both of them were living with the petitioner's brother. She admitted to have received Rs.700/- as maintenance allowance from Ujagar Singh during two years. She used to take money on credit and when the maintenance allowance was paid by her husband, the debt was paid off. She had no ornaments, household goods or any cash amount. She admitted in cross-examination that she received Rs.210/- on that day as maintenance allowance and further that Rs.530/- were deposited in Court by her husband for her. It is somewhat curious that the husband did not appear in the witness-box and it was the petitioner's father-in-law Sarwan Singh, who did so as R. W. 1. He admitted in cross-examination that the maintenance of Dayal Kaur was fixed at Rs.40/- and that of her daughter at Rs.30/- per month. Both of them, according to him, had no property anywhere.

4. The trial Judge accepted the husband's application and dispaupered the petitioner, though in the impugned order he had mentioned that the petitioner was not allowed to sue as a pauper under Order 33, Rule 7, Code of Civil Procedure, primarily on the ground that the petitioner had been paid Rs.700/- in cash and Rs.530/- stood deposited in Court for her and, therefore, she was possessed of sufficient means to pay the court-fee on the suit. As already mentioned above, all this was the maintenance amount given by Ujagar Singh for his wife and her daughter. Both of them used to maintain themselves on credit and when the maintenance allowance was later on paid by Ujagar Singh, they used to clear their debts in that way. Learned counsel for the respondent could not show that this maintenance allowance, which was primarily for the day-to-day expenses of the petitioner and her daughter, should be utilised for paying the court-fee for this suit. The maintenance of a person, in these circumstances, cannot, in my view, be taken into consideration for finding out whether he or she is possessed of sufficient means to enable him or her to pay the fee prescribed by law for the plaint in a pauper suit and for determining whether he or she is a pauper within the meaning of O. 33, R. 7, Code of Civil Procedure. Simply because it was proved on the record that the petitioner got the arrears of maintenance, she could not be dispaupered. The impugned order of the Court below therefore, deserves to be set aside.

5. The result is that this petition succeeds and the order under revision is quashed. There will, however, be no order as to costs. Parties have been directed to appear before the Court below on 25th January, 1971, for further proceedings in the case.

6. Petition allowed.


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