Delhi High Court
Jethu Ram Rice Mill vs Ashok Kumar Verma And Anr. on 18 April, 1995
Equivalent citations: 1995IIAD(DELHI)326, 58(1995)DLT628, 1995(33)DRJ309, (1995)111PLR13, 1995RLR370
Author: D.K. Jain
Bench: M.J. Rao, D.K. Jain
JUDGMENT D.K. Jain, J.
(1) This appeal under Section 10 of the Delhi High Court Act is directed against the order of the learned Single Judge dated 6 February 1995, whereby the objection of the appellant regarding the maintainability of respondent's application under Order 33 Civil Procedure Code has been rejected.
(2) The respondent herein filed on 17 July 1986 an application under Order 33 Rule 1 Cpc, for permission to sue as an indigent person. Plaint was annexed with the application. The same was returned by the Registry the following day with the endorsement "petition is not presented in person by petitioner before Joint Registrar(O)". On 7 August 1986, the petitioner in person presented the same before the Deputy Registrar. The petition was placed before the Registrar on 18 August 1986 who directed notice in the application to be issued to the respondents, the appellant herein being one of them. The appellant filed reply and raised objections to the maintainability of the application, in main, on the ground that the application had not been framed and presented in the manner prescribed by Rules 2 and 3 of Order 33 Civil Procedure Code and that the suit was barred by law of limitation. According to Rule 2, an application to sue as an indigent person should contain the particulars required in a plaint in a suit, which when allowed is converted into a suit and it was alleged that, that being not the case, it deserved to be rejected.
(3) It is true that the application itself did not contain the particulars required in the plaint in a suit. Instead the plaint containing all the necessary ingredients, duly verified, was appended with the application. The application was not verified as such but was supported by an affidavit answering the requirement of verification. The schedule of property attached with the application was also verified. On this the learned Single Judge found that the applicant, thus, substantially complied with the requirements of Rule 2 and that at worst, the application could be returned for rectification of technical objection, on which the applicant could have amended the application and filed a duly drawn up application in terms of Rule 2, but this exercise was not warranted on principles of natural justice, as the application had remained pending for nine years and it would be cruel to the applicant if it were returned to undergo that exercise at that stage, particularly when no prejudice had been caused to the objector by this irregularity. The contention of the appellant was thus, repelled. The learned Judge also held that reckoning from the date of intimation of dishonour of the cheque viz., 23 July 1983, for recovery of which amount the suit was sought to be filed as an indigent person, the suit was within time.
(4) Before us the finding of the learned Single Judge is impugned on the same pleas as raised before and noticed by the learned Single Judge. It is contended that the mandatory provisions of Order 33 Rules 2 and 3 Civil Procedure Code having not been complied with, the learned Single Judge went astray in dismissing the objection and rejecting the application. It was submitted that Rule 3 mandatorily required that the aforesaid application with prescribed annexures to be presented to the Court by the applicant in person, which had initially not been done and the application having been presented by the applicant in person only on 7 August 1986, even if the intimation about the date of dishonour of the cheque was taken as terminus-a-quo, the suit was patently barred by time.
(5) We are of the view that for the reasons stated in the impugned order there has been substantial compliance with Rule 2 of Order 33 Cpc, as observed and found by the learned Judge, in the matter of frame of the application. Order 33 Civil Procedure Code does not warrant technical but only proper compliance. As noticed above, the application having been filed with a copy of the plaint, is deemed as properly framed. The application being supported with affidavit, the annexed plaint duly verified and the annexed schedule of properties with value thereof having been duly verified as true, the application must be deemed to have been properly framed and duly verified. Order 33 does not warrant a meticulous hypertechnical interpretation against a pauper applicant, but only proper and substantial compliance by him. This is also the view taken in Mohamad Isa v. Mt. Shahmali, Air 1957 J&K 15. We are thus, of the view that there has been sufficient compliance with Rule 2 of the Order 33 Civil Procedure Code .
(6) The next question is whether an application by an indigent person for proceedings on the Original Side of the High Court must necessarily be presented in person in terms of Rule 3 of Order 33 Civil Procedure Code and if so, is the suit within time?. We are of the view that such an application to the High Court need not be presented by the applicant in person and the stipulation as to it in Rule 3 of Order 33 Civil Procedure Code was not mandatory in the instant case. The provision as to it in Order 33 Civil Procedure Code is superseded by the Delhi High Court (Original Side) Rules, 1967 (for short the High Court Rules), framed under Sections 122 and 129 of the CPC. Part X of the Civil Procedure Code deals with the Rules. Section 121 thereof stipulates that rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of that Part. Sections 122 and 129 of that Part confer jurisdiction on the High Court to make Rules, inter alia, for regulating its own procedure. Section 129 contains a non-obstante clause and reads as under: @SUBPARA = "Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code."
(7) It is evident from the above that the High Court is competent to regulate its own procedure in the exercise of its Original jurisdiction, even though procedure so laid down may be at variance with the provisions in the First Schedule of the CPC. A perusal of the High Court Rules shows that for proceedings in High Court it is not necessary that the application for permission to sue as an indigent person must be presented by the applicant in person.
(8) Rule 3 of Chapter I of the High Court Rules gives primacy to the High Court Rules and provides that all proceedings on the Original Side of the Court, instituted or transferred shall, unless otherwise ordered by the Court, will be governed by these Rules. Rule 3 of Chapter Ii deals with the powers of the Registrar. It states that, in relation to the matters specified therein, the powers of the Court are exercisable by the Registrar. Entry 49 in that Rule relates to application under Order 33 CPC. The powers of the Court under Order 33 Civil Procedure Code are thus exercisable by the Registrar or such other officer who has been empowered in this behalf. Chapter Iv of the High Court Rules prescribes the procedure for presentation of plaint, application etc. on the Original Side of the High Court. Rule 1 thereof stipulates that all plaints, petitions, applications and documents shall be presented by the plaintiff, petitioner, applicant etc. either personally or through an agent or an Advocate duly appointed by him, at the filing counter. Thus, we feel that it is not necessary that an application under Order 33 Civil Procedure Code as in the case in hand must be presented by the applicant in person for proceedings on the Original side of the High Court. All that the Rule requires is that it should be filed at the filing counter by the applicant personally or by his duly authorised agent or by an Advocate duly appointed by him. This having been done in the instant case, the application to sue as an indigent person was properly filed by the respondent-petitioner on 17 July 1986. No defect in the contents of the application having been found by the Registry, the same could not have been returned with the aforenoted endorsement regarding personal presentation. The Registry was thus in error in doing so. The personal filing of the application on 7 August 1986 must thus relate back to 17 July 1986, the day it was originally filed at the filing counter. The application and the accompanying plaint could not thus be held to have been filed beyond the period of limitation prescribed for filing a suit.
(9) Munuswami v.Mottayya, , relied upon by learned counsel for the appellant is distinguishable on facts. The presentation of the application to the Court concerned in that case was not in accordance with the Rules in the first Schedule of Civil Procedure Code governing it and thus the said decision is not applicable to the facts on hand. Similarly the decision in Harnam Singh v. Bhagwan singh, 1991 Rajdhani Law Reporter 420 cited to contend that if no proper application is made, the Court cannot take cognizance and must reject the same, is clearly distinguishable on facts as the jurisdiction of the Court where the plaint was filed in that case was otherwise barred. In that case, a suit for declaration and injunction in respect of certain equity shares of a company having been held to be falling within the ambit of Section 155 of the Companies Act and friable by Company Judge, its cognizance was held to be impliedly barred by Section 9 Civil Procedure Code and thus, the plaint was rejected under Order 7 Rule 11(d) CPC. The ratio of the judgment has no bearing on the facts of the instant case.
(10) For the foregoing reasons, we have no hesitation in upholding the view taken by the learned Single Judge, though on slightly different grounds. There is no merit in the appeal and the same is accordingly dismissed.