JUDGMENT
M.L. Singhal, J.
1. Smt. Savitri and her husband Malkhan Singh filed suit for the recovery of Rs. 2 lacs against Shri Ramesh and others under the Fatal Accidents Act with interest @ 18% per annum as indigent persons under Order 33 read with Section 151 CPC.
2. Vide order dated 11.8.1990, their prayer to sue as indigent persons was allowed.
3. Ramesh Kumar etc. defendants filed application for the setting aside of the order dated 11.8.1990 and prayed that Smt. Savitri Devi etc. should be dispaupered as prior to declaring them paupers, no notice was given to them as envisaged in Order 33 Rule 6 CPC. If notice as envisaged in order 33 Rule 6 CPC had been given to them, they would have adduced proof to disprove their claim that they were paupers. It was stated in that application that inquiry into the question of indigency of the plaintiffs was not a matter exclusively between the plaintiffs and the State but they (defendants) were also vitally interested in showing that they were not paupers. It was further stated that order declaring them paupers without notice to them was without jurisdiction passed at their back. This prayer of Ramesh Kumar etc. was resisted by Savitri Devi etc. plaintiffs urging that this prayer has been made after a number of years of the date when the plaintiffs had been declared paupers. This prayer was made when the case had reached the stage of final arguments.
4. Vide order dated 3.11.1999, Civil Judge (Senior Division), Karnal declined this prayer. It is this order dated 3.11.1999 which has been challenged through this revision by the defendants. It is submitted by the learned counsel for the petitioner-defendants that the respondent-plaintiffs could not have been declared indigent persons without notice to them and notice to the State alone was not sufficient. It is submitted that if notice had been given to them, they would have adduced evidence to show that the plaintiffs are not paupers but were in a position to pay Court fee on the plaint. In support of this submission, my attention has been drawn to the provisions of order 33 Rule 6 CPC. Order 33 Rule 6 CPC reads as follows:-
“6. Notice of day for receiving evidence of applicant’s indigency- Where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day (of which at least ten days’ clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof.”
It is submitted that the order of the Court declaring the plaintiffs as paupers was without jurisdiction as no notice had been given to them (defendants). If notice had been given to them, they would have contested their claim to pauperism. Under Order 33 Rule 9 CPC, it is open to the Court on the application of the defendant to dispauper the plaintiff on the grounds specified therein, one of them being that his means are such that he ought not to continue to sue as a pauper. An immunity from a litigation unless the requisite Court fee is paid by the plaintiff is a valuable right for the defendant. It follows therefrom as a corollary that the proceedings to establish that the applicant-plaintiff is a pauper which will take away that immunity, is a proceeding in which the defendant is vitally interested. This is further borne out by Order 33, Rule 6 which confers the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is not a pauper. (Vide para 7 of Sh. M.L. Sethi v. Sh. R.P. Kapur, A.I.R. 1977 S.C. 2379). It is true that before the plaintiffs could be declared paupers, the Court should have given notice of their claim that they are paupers to the defendants and the Government pleader. It is submitted that no such notice was given to the defendants Ramesh Kumar etc.
5. Faced with this position, learned counsel for the respondent-plaintiff submitted that they were declared paupers in the year 1990. Defendants Ramesh Kumar etc. filed written statement in the year 1991. In the written statement, they had specifically stated that the application filed under Order 33 CPC by the plaintiffs was mala fide and they were not served with any notice of the said application. Order declaring the plaintiffs as paupers was contrary to the provisions of CPC and was not binding on them (Ramesh Kumar etc.). It was submitted that Ramesh Kumar etc. should have sought the setting aside of the order dated 11.8.90 within a reasonable time. They came for the setting aside of this order in 1999 i.e. after a lapse of 9 years. It is submitted that they should not be heard after a lapse of 9 years particularly when the order dated 11.8.90 was not a nullity and was merely a wrong order, It is submitted that the defendants participated in the suit. They contested the suit, filed written statement in the year 1991 and cross-examined the witnesses and still they did not take any step to have that order set aside where through the plaintiffs have been adjudged paupers by the Court. It is submitted that Section 3 of the Limitation Act is pre-emptory and the duty of the Court is to notice the Act and give effect to it even though it is not referred to in the pleadings. In support of this submission, he has drawn my attention to Maqbul Ahmad and Ors. v. Onkar Pratap Narain Singh and Ors., A.I.R. 1935 Privy Council 85. It is submitted that this order should have been challenged by Ramesh Kumar etc. within the time of limitation. If they were to seek its review, they should have filed review application to secure its review within 30 days of the date when it came to their notice. Initially, it was a suit in forma pauperis by Savitri Devi and Malkhan Singh. Later on vide statement dated 19.5.90, Malkhan Singh sought to withdraw his prayer to sue as pauper. Report of the Collector was received which was that the applicant does not own any property. Pauper application was allowed. Notice was issued to the defendants for 14.9.90. On notice the defendants appeared and filed written statement and continued with the proceedings of the suit. Order dated 11.8.90 declaring the plaintiffs paupers does not conduce to the provisions of Order 33 Rule 6 CPC as prior to the passing of the order no notice had been given to Ramesh Kumar etc. defendants. Question that now arises is what was the remedy to have this order set aside. If appeal/revision was permissible, there is palpable delay. If review was permissible, there is palpable delay. It is also submitted what was the prejudice to Ramesh Kumar etc. when the Collector had found that the plaintiffs did not own any property. It is also submitted that they were cross-examined on the point of pauperism also and as such also there was no prejudice to them.
6. As no notice had been issued to Ramesh Kumar etc. before the plaintiffs were adjudged paupers, the order adjudging them paupers cannot be sustained vis-a-vis Ramesh Kumar etc.
7. For the reasons given above, this revision is allowed and the impugned order dated 3.11.99 is set aside and order dated 11.8.90 is also set aside. Issue as to whether plaintiffs are or are not indigent persons shall be decided in the presence of Ramesh Kumar etc. If they are found to be paupers, whatever proceedings have taken place so far in the suit, those will hold good. If they are not found paupers, they shall be given time to make up deficiency in Court fee on the plaint When such deficiency is made good, whatever proceedings have taken place in the suit those will hold good. If they do not make up deficiency in Court fee on the plaint with in the time allowed to them, the plaint shall be liable to be rejected Trial of the suit shall remain in abeyance till this exercise is oven.