ORDER 33 RULES 1 AND 2, 4 – Seeking permission to sue as an indigent person – Affidavit evidence filed by Power of Attorney holder of the respondent – Such person not filing application to seek leave as contemplated under Order 33 Rule 4 – HELD – Without granting leave, the Court, under Order 33 Rule 4 of CPC, cannot examine the applicants/ respondents agent, regarding the merits of the claim and the property of the applicant/respondent Trial Court order rejecting the IA. of the plaintiff regarding affidavit evidence of the respondent set aside.
Trial Court Order set aside.
ORDER
H.G. Ramesh, J.
1. The order impugned herein arises out of a proceeding instituted by the respondent under Order 33, Rules 1 and 2 of the Code of Civil Procedure seeking for permission to sue as an indigent person.
2. By the impugned order dated 2-12-2003, the Trial Court has dismissed the petitioner’s LA. to reject the affidavit dated 29-7-2003 of one J. Subbegowda-the power of attorney holder of the respondent. The said affidavit was filed as evidence in support of the respondent’s application for permission to sue as an indigent person.
3. Heard learned Counsels appearing for the parties and perused the impugned order.
4. It is not disputed by the respondent/applicant that no leave of the Court as contemplated under Order 33, Rule 4 of the CPC was obtained to allow him to appear through an agent. Without granting such leave, the Court, under Order 33, Rule 4 of the CPC, cannot examine the applicant’s agent, regarding the merits of the claim and the property of the applicant. This becomes evident by a perusal of Order 33, Rule 4 of the CPC which reads as follows:
“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 by 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”.
Accordingly, the affidavit of the power of attorney holder of the applicant, filed in support of the application, ought to have been rejected by the Trial Court.
5. At this stage, learned Counsel appearing for the respondent/applicant submits that he would examine the respondent on 17th of March, 2004. If so examined, learned Counsel for the petitioner submits, he would complete the cross-examination on that very day. The statements of the learned Counsel are placed on record.
6. In the result, I make the following order.–
The impugned order is set aside. The affidavit dated 29-7-2003 of the power of attorney holder of the respondent which was filed as evidence before the Trial Court shall stand rejected. The respondent is at liberty to examine himself on 17-3-2004 in support of the application in P. Miscellaneous No. 753 of 2002 and if so examined, the petitioner shall cross-examine him on that very day. The writ petition stands disposed of in the above terms.