- (1.) This petition has been filed against the order dated 04.05.2012 passed by the learned trial Court rejecting application of the petitioners under Order 33 Rule 5 C.P.C. as well as rejecting application of the respondent to sue as an indigent person.
(2.) Originally, the case set up by the respondent was that he was running a commission agency and the petitioners had ordered goods worth lakhs from him. After respondent supplied the same the payments were not made by the petitioners, as a result the respondent became indebted to many persons and consequently filed the suit for recovery alongwith an application under Order 33. An objection was taken by the petitioners that the said application was not in the format prescribed under Order 33. That objection was upheld and the application was rejected. The respondent came up to this Court by way of a civil revision which was disposed of in the following terms by order dated 28.10.2010:- "Learned counsel for the respondents states that plainti -petitioner has not moved an application seeking permission to sue as an indigent person in a format prescribed under Order 33 Rule 1 C.P.C. and no compliance of the provisions of Order 33 Rules 2 and 3 has been made by the plaintiffpetitioner. Learned counsel for the petitioner states that he shall move fresh application in the format as per the provisions of Order 33 Rules 2 and 3 C.P.C. In view of the arguments advanced by learned counsel for the parties, this Court is of the opinion that let fresh application be moved by the plainti in the format as per the provisions of Order 33 Rules 2 and 3 and in the event of moving such application that application shall be decided in accordance with law without being prejudiced from any observation made in the impugned order. Petition stands disposed of." Thereafter, the respondent moved a fresh application against the order rejecting an application. The application was opposed by the petitioners by arguing that a fresh application could not be entertained on two grounds. Firstly, with the rejection of the first application and the previous order of this Court the whole plaint come to an end and it was incumbent upon the respondent to file a fresh suit. The second argument taken was that as per Order 33 Rule 2 the application had to contain all the particulars which were required in the plaint while in the application filed by the respondent it was merely mentioned that the contents of the plaint may be read as part of the application. The learned trial Court held that the objections taken by the petitioners were extremely technicalistic in nature. However, after discussing the evidence and the report of the Collector the learned trial Court also held that the respondent was not proved to be an indigent person and consequently rejected the applications of the petitioners as well as the respondent and gave an opportunity to the respondent to affix advalorem Court fee on or before 07.06.2012. I put it to learned counsel for the petitioners that now the respondent has affixed advalorem Court fees what substantial prejudice has been caused to the petitioners. Learned counsel for the petitioners states that the question is not so much of prejudice since the suit itself was not maintainable because of the two grounds taken by the petitioners before the learned trial Court. The third ground as per the learned counsel is that if a petition is filed for suing as an indigent person the Court has no jurisdiction to permit such a person to make up the deficiency of Court fees. With regard to this argument, learned counsel for the petitioners has relied upon the judgment in the matter of Chunna Mal vs. Bhagwant Kishore, 1936 AIR(All) 584 This judgment lays does down that where an application is dismissed under Order 33 Rule 5 C.P.C. the Court has the power to allow the person to make up the deficiency of the Court fees but where it is dismissed under Order 33 Rule 7(3) C.P.C. the Court cannot allow the payment of Court fees. Without adverting to the technical aspects the fact remains that the respondent filed an application to sue as an indigent person which was rejected. The matter came up to this Court where the matter was remanded for fresh consideration. In the second round also the application was rejected and now the proper Court fee has been affixed. The issue now before this Court is whether in such a situation even if there is a technical infraction of law, extraordinary jurisdiction should be exercised so that the respondent can seek refund of his Court fee (as admitted by learned counsel for the petitioners) and file a fresh suit which would mean that the entire one or two years which elapsed and the amount of labour and the time which the Court had spent would be wasted and the only thing which the petitioners would gain is time. In my considered opinion, Article 227 of the Constitution of India cannot be brought to bear in such circumstances. Accordingly, the petition is dismissed.;