Muddi v. Jamila Begum & Ors

REVA KHETRAPAL, J DECEMBER 09, 2009 kin CMI 1/2 009 Page No. 5 qf 5

* IN THE HIGH COURT OF DELHI AT NEW DELHI % DATE OF RESERVE: December 08, 2009 DATE OF DECISION: December 09, 2009 ± RFA No. /2OO9 (CMI No.1/2009) SMT. MUDDI Appellant Through: Mr. Hanu Bhaskar, Advocate versus JAMILA BEGUM & ORS. Respondents Through: None CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL I Whether reporters of local papers may be allowed X to see the judgment? To be referred to the Reporter or not? Whether judgment should be reported in Digest? ,X REVA KIIETRAPALI± I This appeal is directed against the order dated 24th September, 2008 passed by the learned Additional District Judge. The appellant has also impugned the orders dated 09.10.2006 in Suit No.345/2006 and order dated 08.05.2008 passed in review petition passed by the learned trial court. 2. The brief facts leading to the filing of the present appeal are that the appellant had filed a suit for declaration and joint possession against the respondents claiming her right in the suit property, i.e., property bearing No.7 (New M.C.D. No.763), Gali No.B-6., measuring 512 sq. ft. and property bearing No.1 (New MCI). No.788, 789 and 790). Gali No.8-13, measuring 475 sq. yds., both situated at Mohalla Chaudharian, Near Ban Masjid, Village Mandoli, Shandara, Delhi. Along with the suit, the appellant had filed an application under Order XXXIII CPC to sue as an indigent person. S Jace No. 1 qf 5 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 3. In response to the application under Order XXXIII CPC, the respondents filed a reply opposing the said application. The respondent No.1 also filed an application under Order VII Rule II CPC for dismissal of the plaint to which the appellant filed reply. 4. On 04.10.2005, the Sub-Divisional Magistrate, Seema Pun on the directions of the learned trial court filed a report with regard to the assets of the appellant, which reads as under:- "In response to your courts notice dated ]/8/2OO5, I am to submit before the Hon'ble court that the plaint ff Smt. Muddi was contacted at HNo. -B-6, Mandoli, Delhi by the field stqff of this office for verification of her properties under reference. Her statement was recorded in which she has stated that she has no property any where in India in her name and any Jewelry etc. She is fully dependant on her son Daoud Ali, and the same has also been verified by her son Daoud Au, two witnesses Sh. Wasim Khan SVo Mohd. Saleem and Sh. Bhoore S/o Mohd. Saleem and field sratf in their written statements. The statements of the field staif and persons contacted at the time of survey are enclosed herewith for kind perusal. 5. On 09.10.2006, after considering the report of the Sub-Divisional Magistrate, Seema Pun and hearing both the parties, the learned Additional District Judge held that it was evident that the appellant had sufficient means to pay the court fees. The application moved under Order XXXIII CPC was accordingly dismissed and the appellant was directed to pay the Court fees before the next date of hearing. 6. Aggrieved by the order dated 09.10.2006, the appellant filed an application for review under Order XL VII Rule 1 CPC against the said order. The review application was dismissed by the learned trial court on 08.05.2008 on the ground that a perusal of the said application revealed that in the garb of review of the order the intention of the appellant was to have the matter reheard, which was beyond the scope of review. By the aforesaid order, the S I J Page No. 2 of 5 •1 . appellant was directed to pay the Court fees within four weeks from the date of the passing of the order and the matter was listed before the learned trial court on 22 July, 2008. On the said date, none appeared for the appellant nor Court fees was filed by the appellant. The Court, however, granted one more opportunity to the appellant to file the deficient Court fees within 15 days of the date of the passing of the order and the ma