Decided on August 09,1983

VEENA DEVI Appellant
Yash Pal And Others Respondents


M.L. Jain, J. - (1.)The marriage of the parties took place on 9-2-1976 and was dissolved on 4-8-1979. The wife filed on 13-7-1981 against her husband Yash Pal, his father Suraj Pal, and mother Kunti Devi, a "suit for recovery of Rs. 29,516.00 under Order 33 Rule I C.P.C." expended on her marriage shown in Annexure A. In paragraph 10 of that suit, it was stated "That the plaintiff is an indigent person and does not possess the means to pay the requisite court fee on the plaint. Description in respect of the movable and immovables owned by the plaintiff are mentioned in Schedules A and B respectively which are attached with the plaint". In paragraph 13 it was stated that the suit was instituted in form a pauperism. The last paragraph included a prayer for a decree and any other relief. According to "the Law of Pleadings in India" by P.C. Mogha, 1961 Ed. page 876, the plaintiff should have added one more sentence that "the plaintiff prays for permission to sue as a pauper". This was not done.
(2.)However, on 15-7-1981, the learned Addl. District judge recorded the statement of the petitioner, directed the petition to be registered and issued notice to the respondents for 11-8-1981. On 11-8-1981 none of the respondents excepting the Union of India was present in spite of service. They were proceeded ex parte. On 26-8.1981 the learned Addl. District judge again recorded the statement of the petitioner and held that from the ex parte statement given by her, he was satisfied that the petitioner was an indigent person. Therefore, he allowed her to sue in forma pauperis and directed the petition to be registered as a plaint. At that stage the defendants appeared. A copy of the plaint was given to them and the case was adjourned for the written statement to 15-9-1981.
(3.)On 10.9-1981 husband Yash Pal defendant No. 1 filed an application under Order 9 Rule 7 CPI; for setting aside the ex parte order made on 11-8-1981. A copy of this application was given to the plaintiff on 15-9-1981. The case was then posted for her reply on 13.11-1981. On 13-11-1981 no one appeared on behalf of the defendants. The court made no order on the application under Order 9 Rule 7 and recorded her evidence ex parte on 19.11-1981. It decreed the suit on 21-11.1981. On 19-12-1981 Kunti Devi and Suraj Pal applied under Order 9 Rule 13 Code of Civil Procedure for setting aside the ex parte decree. On 26-3.1982 the ex parte decree were set aside. On 16-4-1982 an application under Sec. 151 Code of Civil Procedure was moved on behalf of Yash Pal that the plaintiff had not filed a separate application provided under Order 33 Code of Civil Procedure for permission to sue as an indigent person and since the plaint did not bear the requisite court fee it should be rejected under Order 7 Rule 11 CPC.

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