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Delhi High Court

Shub Lata vs Bimla Devi & Ors. on 1 March, 2012

Author: Manmohan Singh

Bench: Manmohan Singh

.*          HIGH COURT OF DELHI : NEW DELHI

%                                       Judgment pronounced on: 01.03.2012

+                       O.A. No.83/2011 in IPA No.6 of 2010


SHUB LATA                                                 ..... Petitioner
                          Through   Mr. Surender Kumar Gupta, Adv


                          Versus

BIMLA DEVI & ORS                                            ..... Respondents
                Through             Mr. S. Paul, Adv. with Mr. V.K.Jain, Adv.
                                    for respondent No.1.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.(Oral)

1. The present petition has been filed for partition and permanent injunction. The brief factual matrix of the case is that a plot bearing No.20, B-VI Extension, Safderjung Enclave, Arjun Nagar, New Delhi, was acquired by Smt. Satya Devi from her late husband Ram Dass. Smt. Satya Devi died intestate in the year 2009. Since at the time of death of Ram Dass and his wife Smt. Satya Devi, there were no Class-I legal heirs of both of them, therefore, the property devolved upon the petitioner and the respondents, Class-II legal heirs.

2. The petitioner and respondent No.2 are the nieces of late Ram Dass whereas respondent No.1 is his sister. After the death of Satya Devi, the petitioner asked for settlement over the suit property, but the respondents did not act on the same. Hence, the petitioner filed this petition.

3. The present petition was listed for the first time on 05.04.2010 and the same was ordered to be registered as an independent petition. The report from the SDM was also called with regard to the resources of the petitioner. The matter was sent to the Joint Registrar for the purpose of holding enquiry, as to whether the applicant/petitioner was an indigent person or not. In view thereof, the Joint Registrar on 29.04.2011 has passed the following order:-

"The number found on plaint as IPA no. 6/2010 be deleted. The plaint remains un-numbered. The IPA no. 6/2010 by way of interlocutory application is found in part II.

The report of SDM, Ludhiana is on record. Though notices were ordered to the respondents, no reply is filed. The petitioner/indigent person is present. Her statement is being recorded for the purposes of Order 33 Rule 4 of CPC. Heard the ld. counsel for the petitioner.

ORDERS UNDER ORDER 33 RULE 5 OF CPC After considering the statement on oath made by Indigent person Shubh Lata and further having taken note of the report of the SDM, Ludhiana which is now marked as Ex. C-1, I find that there is no ground to reject this application filed by the petitioner to sue as an indigent person.

In view of the above, the dates for inquiry in detail is fixed to be on 16th August, 2011 for which the counsel appearing for respondent no. 1 is notified. Let court notices be issued to the respondent no. 2 without PF. Notices be also issued to the Govt. Pleader intimating the next date.

Put up for evidence of the petitioner on indigency. In the meantime the respondents shall also file their replies to the application within two weeks and rejoinder within two weeks thereafter."

4. The separate statement of the petitioner was also recorded on 29.04.2011. The same reads as under:-

"Statement of Petitioner (as under Order 33 Rule 4 of CPC) Mrs. Shub Lata W/o Mr. Ashok aged about 55 years, R/o 2202, Gali No.5/1, Mohalla Adarsh Nagar, Samrala Chowk, Ludhiana, Punjab.

On S.A. I have filed an original suit for the partition. I am an indigent person. I am not supported by anyone else. I am unable to pay the court fee. I may be permitted to file the suit as an indigent person.

           Sd/-                                           Sd/-
           RO & AC                                     A.S. Jaya Chandra
           NR                                          Joint Registrar
                                                       Dated 29.04.2011"

5. It appears from the order dated 29.04.2011 that the matter has now been put up for evidence of the petitioner on indigency. In the meanwhile, the respondents were directed to file replies to the application. The said order dated 29.04.2011 has been challenged by the respondent No.1/appellant by way of the present appeal. It is stated in the appeal that the order dated 29.04.2011 of the Joint Registrar is liable to be set-aside, as under the inquiry the Court has also to see the validity of the cause of action on the basis of which the present suit has been filed and not merely as per the report with regard to the resources of the petitioner to consider the petition on indigency.

6. The reply has been filed by the petitioner wherein, it is stated that the impugned order has been passed by the Joint Registrar in accordance with law. The learned counsel for the petitioner has referred the impugned order, by which the matter is put up for evidence of the petitioner. The learned counsel has no objection, if, the petitioner may also be cross-examined by the respondent on the point of cause of action.

7. In view of above, I do not think that any further order in the present appeal is required to be passed. Therefore, the same is dismissed.

8. The appeal is accordingly disposed of.

List before the Joint Registrar on 10.05.2012.

MANMOHAN SINGH, J.

MARCH 01, 2012 O.A. No.83/2011 in IPA No.6/2010 Page 4 of 4