JUDGMENT
A.M. Sapre, J.
1. This Misc. appeal is by the minor plaintiff who was refused permission to sue and prosecute his suit as an indegent person. The impugned order is dated 4-12-1997, passed by learned IInd A.D.J., Dhar, in case No. 22/96. Facts in brief for the disposal of this appeal are these.
2. Appellant is the plaintiff. He is minor. He filed a suit through next friend – his father Bhagwan against the respondent (defendant) claiming compensation amounting to Rs. 5,00,000/-. The suit was inter alia founded on the allegations that on 21-3-1993 plaintiff – Kapil was down with fever. He went to take medicines to defendant, who was a private medical practitioner. According to plaintiff, defendant administered certain injections which adversely affected on the plaintiff. The advance reaction resulted in permanent disability in his leg as he is now unable to walk. In support, the plaintiff filed certificates of other doctors. According to plaintiff this disability was due to shere neglience of defendant and hence suit to claim damages of Rs. five lacs was filed.
3. Since the plaintiff had no means to pay the requisite advelorum Court fees on the valuation of the suit and hence, he filed the suit under Order 33 Rule 1 of C.P.C. as an indigent person. It was alleged that plaintiff does not possess any property of any nature in his individual name and hence he is entitled to file a suit as an indigent person.
4. The trial Court called for the report from the concerning Collector in accordance with provisions of Order 33 ibid with a view to find out whether plaintiff (appellant herein) – minor child is possessed of any moveable or immoveable property in his own name. The trial Court also recorded the evidence of the witnesses after giving an opportunity to the defendant to lead evidence on this issue. The plaintiff led oral evidence of his father Bhagwan, Laxminarayan and Umrao Singh. No evidence was tendered on behalf of respondent.
5. By impugned order, the learned trial judge declined to grant permission to the plaintiff to file the suit as an indigent person. It was held that the report of the Collector which was the basis for declining permission revealed that there are several properties owned and possessed by plaintiff’s father. It was also revealed that plaintiffs father purchased certain properties in his own name. In the opinion of the trial Court, these facts disentitled the plaintiff to prosecute the suit as an indigent person because he is able to pay the Court fees with the help of his father next friend. It is this order declining him to file a suit as an indigent person is challenged by the plaintiff in this appeal.
6. Heard Shri Iqbal Hussain, learned counsel for the appellant and Shri CS Ujjaniya, learned counsel for the respondent.
7. Having heard the learned counsel for the parties and having perused the impugned order, I am of the view that trial Court committed an error of jusrisdiction in holding that plaintiff is possessed of the property. In may opinion, the appeal has to be allowed.
8. In my opinion, the trial Court should have focused his attention to the fact whether appellant (Plaintiff) – minor Kapil is possessed of any property in his own name. In order to decide whether the plaintiff is allowed to sue as an indigent person, it is necessary for the court to determine the extent of property whether moveable or immoveable held and possessed of by the plaintiff in his own name. Merely because the plaintiff happens to be a minor would not make any difference. So far as the issue regarding his holding of properties is concerned, the Court can not take into account the properties standing in the name of his father or any near relations. Merely because there are certain properties which are standing in the name of his father would not come in the way of plaintiff to contend that he is an indigent person.
9. I am supported by a Division Bench decision of Calcutta High Court, reported in AIR 1923 Calcutta 656 (Nemibala Dassya v. Jaimni Sundari). The Calcutta High Court speaking through Rankiri, J. while accepting the aforesaid proposition made following observations:
“In this case I am of opinion that the rule must be made absolute. It appears that upon the terms of the Civil Procedure Code and the cases thereunder, in the particular case of Venkatanarasaya v. Achemma (1881) ILR3 Mad. 3(1) a minor who is not possessed of sufficient means within the definition of pauperism for the purpose of Order 33 is entitled to be allowed to sue in forma pauperis by a next firend although the next friend is not a pauper. In like manner the wealth or other circumstances of the mionr’s relation in general are not material under the Code. The law of India in this respect appears to be very different indeed from the law as prevalied in the Court of Chancery in England.
Under the circumstances we have no option but to make this rule absolute to direct the Court below to proceed under Order 33. There will be no order as to costs.”
10. Similar was the view taken by the Bombay High Court in yet another case reported in AIR 1924 Bombay 440.
11. Taking the overall view of the matter, I am of the opinion that the Report of the Collector does not show that there was any property found in the name of Kapil the real plaintiff, who was aminor. There is no finding given by the learned trial judge that there was any property in the name of plaintiff which was taken into account for declining to grant permission to the plaintiff to sue as an indigent person.
12. Accordingly this appeal is allowed, impugned order is set aside. Plaintiff is allowed to sue as an indigent person. Trial Court is directed to register the suit and proceed to decide the suit on merits without demanding any Court fees from the appellant (plaintiff) on the valuation of the plaint. Since the suit is pending for last many years, I direct the trail Court to take up the suit on its file and decide the same within a period of six months. Parties to appear before the Court on 24-7-2000.