1. Suit for recovery — Application to sue as indigent person under Order 33 Rule 1, CPC — Rejection of status — Subsequent application for appeal as indigent person under Order 44, CPC. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 )
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2019 Supreme(SC) 17
SUPREME COURT OF INDIA
Abhay Manohar Sapre, Indu Malhotra, JJ.
Sushil Thomas Abraham – Appellant
Vs.
M/s Skyline Build. Through Its Partner & Others – Respondents
Civil Appeal No. 117 of 2019 [Arising out of SLP (C) No. 19516 of 2014]
Decided On : 07-01-2019
Important Points
IMPORTANT POINT
Application for permission to file suit/appeal as indigent person cannot be decided without an enquiry.
Application for permission to file suit/appeal as indigent person cannot be decided without an enquiry.
Subject
Civil Law - Indigent Persons
Act Referred
Headnote
(a) Code of Civil Procedure, 1908 – Order XXXIII Rule 11 r/w Rule 3(2), Order XLIV – Filing of suit as indigent person – Plaintiff has to prove that he is not possessed of sufficient means to pay the requisite court fees – Prayer can be allowed or rejected after enquiry – Permission granted can be withdrawn on the plaintiff becoming dispaupered – Held, dismissal of application made under Order XXXIII Rule 1 by Trial Court in the earlier round of litigation – Not a bar against the plaintiff to file an application/appeal under Order XLIV Rule 1 – Applicant to whom permission was granted or declined by trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent person.
(b) Code of Civil Procedure, 1908 – Order XLIV Rule 3(2) – Applicant who was declined status of an indigent person by trial court in the suit – Entitled to prosecute appeal as an indigent person, if becoming an indigent person since the decree – In such case also, an inquiry is required to be held to decide his status – High Court dismissing application of appellant without holding an enquiry – Not permissible. (Para 33, 34)
Facts of the case:
The appellant filed a civil suit against the respondents for recovery of Rs.74,66,107/- under Order 33 Rule 1 of CPC seeking permission to institute the suit as an indigent person under Order 44 Rule 1.
This prayer was rejected by the trial court as well as the High Court.
Finding of the Court:
The reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld.
Result: Appeal allowed.
Judgement Key Points
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Advocates:
Advocate Appeared:
For the Appellant : Mr. C.N. Sreekumar, Mr. P.R. Nayak, Mr. Amit Sharma, Ms. Malavika B. Pillai, Mr. Prakash Ranjan Nayak
For the Respondents: Mr. V. Giri, Mr. Anil Kaushik, Mr. Abhishek Mishra, Mr. Akash Bhardwaj, Ms. Shilpa Singh
Advocate Appeared:
For the Appellant : Mr. C.N. Sreekumar, Mr. P.R. Nayak, Mr. Amit Sharma, Ms. Malavika B. Pillai, Mr. Prakash Ranjan Nayak
For the Respondents: Mr. V. Giri, Mr. Anil Kaushik, Mr. Abhishek Mishra, Mr. Akash Bhardwaj, Ms. Shilpa Singh
Table of Contents
2. Whether prior rejection of indigent status under Order 33 Rule 1, CPC, bars a subsequent application to file an appeal as an indigent person under Order 44, CPC. (Para 13 , 14 )
3. Rejection of indigent status at trial stage is confined to the suit; Order 44 Rule 3(2) allows fresh inquiry into indigent status at the appellate stage. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 )
4. Dismissal of an application to sue as an indigent person under Order 33 Rule 1, CPC, does not bar an application under Order 44 Rule 1, CPC. (Para 30 , 31 , 33 )
5. Appeal allowed — Impugned order set aside — Case remanded to Appellate Court for inquiry into indigent status under Order 44 Rule 3(2), CPC. (Para 35 , 36 , 37 , 38 )
6. Does a prior rejection of indigent status in a suit bar a similar application in an appeal?
No. The grant or rejection of indigent status by the Trial Court is confined to the disposal of the suit. An applicant is still entitled to apply to the appellate court under Order 44 Rule 1, CPC, to prosecute the appeal as an indigent person. (Para 30 , 31 )
7. What is the procedure when a person who was not allowed to sue as an indigent person claims to have become indigent by the time of appeal?
Under Order 44 Rule 3(2) of the CPC, the Appellate Court must hold an inquiry, or direct the Trial Court to do so, to determine if the applicant has become an indigent person since the date of the decree appealed from. (Para 27 , 33 , 34 )
8. What properties are excluded when determining if a person is an indigent person under Order 33, CPC?
Properties exempted from attachment in execution of a decree and the property which is the subject matter of the suit are not regarded as possessed by the person for determining their financial capacity to pay court fees. (Para 21 )
9. How is the status of an indigent person handled in an appeal if the status was already granted by the Trial Court?
No further inquiry is necessary if the applicant files an affidavit stating they have not ceased to be indigent since the date of the decree, unless the government lawyer disputes the statement, in which case an inquiry is mandatory. (Para 25 , 26 )
JUDGMENT :
Abhay Manohar Sapre, J.
Leave granted.
2. This appeal is directed against the final judgment and order dated 10.03.2014 passed by the High Court of Kerala at Ernakulam in CMC No.78/2011 in RFA No..../2011 whereby the Division Bench of the High Court dismissed the CMC petition filed by the appellant herein.
3. The facts of the case lie in a narrow compass as would be clear from their narration infra so also the controversy which is involved in this appeal is a short one.
4. The appellant is the plaintiff and the respondents are the defendants in the civil suit out of which this appeal arises.
5. The appellant filed a civil suit against the respondents in the Court of 1st Additional Sub-Judge, Thiruvananthapuram being OP (indigent) No. 38/96 for recovery of Rs.74,66,107/-. This suit was filed under Order 33 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). The appellant alleged that he is unable to pay ad valorem court fees of Rs.3,96,610/- which was payable by him on the claim made in the suit and therefore he be granted permission to institute the suit as an indigent person.
6. The respondents (defendants) contested the claim by filing written statement and denied the appellant's claim including his prayer to declare him as an "indigent person".
7. According to the respondents, the appellant was in a position to pay the ad valorem court fees of Rs.3,96,610/- on the plaint because he had sufficient means to pay the ad valorem court fees. The respondents contended that the appellant was, therefore, not entitled to claim the status of an "indigent person" within the meaning of Order 33 Rule 1 Explanation I (a) & (b) of the Code for filing a suit under Order 33 of the Code.
8. The Trial Court by order dated 19.08.1998 rejected the prayer made by the appellant (plaintiff) for filing a suit as an "indigent person" under Order 33 Rule 1 of the Code. In other words, the Trial Court held that the appellant failed to make out a case that he is an "indigent person" and, therefore, he cannot be allowed to file a suit as an "indigent person" under Order 33 Rule 1 of the Code.
9. The plaintiff (appellant herein) felt aggrieved and filed appeal against the aforementioned order of the Trial Court in the High Court being CMA No.248 of 1998. By order dated 22.02.2000, the High Court dismissed the appeal and upheld the order of the Trial Court. The High Court granted the plaintiff one month time to pay the requisite ad valorem court fees on the plaint.
10. The plaintiff then converted his suit in the Original Suit (OS No.227/2000). He also filed another Civil Suit (OS No.921/95) seeking therein the declaration and injunction against the defendants in relation to the subject matter of the first suit. Both the suits were clubbed together for trial. By judgment and decree dated 12.04.2011, the Trial Court dismissed the suits.
11. The plaintiff (appellant) felt aggrieved and filed an application accompanied by the memorandum of appeal before the High Court of Kerala under Order 44 Rule 1 of the Code. The appellant alleged in the application that his financial condition is further deteriorated from what it was earlier when he had filed a civil suit and, therefore, he is unable to pay the ad valorem court fees on the memorandum of appeal.
12. The plaintiff (appellant), therefore, prayed that he be allowed to file the first appeal against the decree of the trial court as an "indigent person" under Order 44 Rule 1 of the Code without payment of ad valorem court fees payable on the memorandum of appeal.
13. By impugned order, the High Court rejected the application. The High Court in substance held that in the light of the earlier rejection of the appellant's (plaintiffs) prayer to file a suit as an "indigent person" under Order 33 Rule 1 of the Code by the Trial Court and the same having been upheld by the High Court in the appeal, the plaintiff is not entitled to file an application/appeal under Order 44 Rule 1 of the Co
